<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 28, 1999
POST-EFFECTIVE AMENDMENT NO. 1 TO REGISTRATION STATEMENT NO.
333-48775 REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------------
Form S-3
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
------------------------------------
THE B.F.GOODRICH COMPANY
(Exact Name of Registrant as Specified in Its Charter)
<TABLE>
<S> <C>
NEW YORK 34-0252680
(State or Other Jurisdiction of Incorporation or (I.R.S. Employer Identification Number)
Organization)
</TABLE>
4020 KINROSS LAKES PARKWAY
RICHFIELD, OHIO 44286-9368
(330) 659-7600
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Principal Executive Offices)
------------------------------------
NICHOLAS J. CALISE, SECRETARY
THE B.F.GOODRICH COMPANY
4020 KINROSS LAKES PARKWAY
RICHFIELD, OHIO 44286-9368
(330) 659-7600
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent For Service)
------------------------------------
Copy to:
FRANK L. SCHIFF
WHITE & CASE LLP
1155 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10036
(212) 819-8200
------------------------------------
Approximate date of commencement of proposed sale to the public: From time to
time after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [X] 333-48775
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
------------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS AMOUNT TO BE AGGREGATE PRICE AGGREGATE REGISTRATION
OF SECURITIES TO BE REGISTERED REGISTERED (1) PER UNIT (2) OFFERING PRICE (1)(2) FEE
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities.............................. $200,000,000 100% $200,000,000 $.00 (3)
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Or the equivalent in foreign denominated currency or units based on or
relating to currencies, or if debt securities are issued at original issue
discount, such higher principal amount as shall result in an aggregate
initial public offering price of $200,000,000 at the time of initial
offering.
(2) Estimated solely for the purpose of determining the registration fee.
(3) Pursuant to Rule 429(b): All of the securities being registered hereby
represent the unsold portion of debt securities previously registered
pursuant to Registration Statement on Form S-1, Commission File No.
333-48775, for which all registration fees have been paid.
------------------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
This Registration Statement constitutes Post-Effective Amendment No. 1 to
the Registrant's Registration Statement on Form S-1, Commission File No.
333-48775. Such post-effective amendment shall become effective in accordance
with Section 8(c) of the Securities Act of 1933 concurrently with the
effectiveness of this Registration Statement.
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- --------------------------------------------------------------------------------
<PAGE> 2
PROSPECTUS SUPPLEMENT (SUBJECT TO COMPLETION, ISSUED APRIL , 1999)
(TO PROSPECTUS DATED APRIL , 1999)
$200,000,000
THE B.F.GOODRICH COMPANY
% NOTES DUE 2009
------------------------
INTEREST PAYABLE ON AND .
------------------------
We may redeem the notes in whole or in part, at any time prior to maturity at
the redemption prices set forth in this prospectus supplement
------------------------
INVESTING IN THE NOTES INVOLVES RISKS. SEE "RISK FACTORS" BEGINNING ON PAGE 6 OF
THE ACCOMPANYING PROSPECTUS.
------------------------
PRICE % AND ACCRUED INTEREST, IF ANY
------------------------
<TABLE>
<CAPTION>
UNDERWRITING
PRICE TO DISCOUNTS PROCEEDS TO
PUBLIC (1) AND COMMISSIONS COMPANY
---------- --------------- -----------
<S> <C> <C> <C>
Per Note................................ % % %
Total................................... $ $ $
</TABLE>
The Securities and Exchange Commission and state securities regulators have not
approved or disapproved these securities, or determined if this prospectus
supplement or the accompanying prospectus is truthful or complete. Any
representation to the contrary is a criminal offense.
Morgan Stanley & Co. Incorporated expects to deliver the notes to purchasers on
April , 1999.
------------------------
MORGAN STANLEY DEAN WITTER
April , 1999
<PAGE> 3
------------------------
TABLE OF CONTENTS
PROSPECTUS SUPPLEMENT
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
BFGoodrich.................................................. S-3
Corporate Developments...................................... S-3
Use of Proceeds............................................. S-3
Description of the Notes.................................... S-3
Underwriter[s].............................................. S-6
Validity of the Notes....................................... S-7
</TABLE>
PROSPECTUS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
About This Prospectus....................................... 4
Where You Can Find More Information......................... 4
Forward-Looking Statements.................................. 5
Recent Developments......................................... 5
Risk Factors................................................ 6
The Company................................................. 8
Use of Proceeds............................................. 9
Ratio of Earnings to Fixed Charges.......................... 9
Description of Debt Securities.............................. 9
Plan of Distribution........................................ 17
Legal Opinions.............................................. 19
Experts..................................................... 19
Unaudited Pro Forma Condensed Combined Financial
Statements................................................ F-1
</TABLE>
S-2
<PAGE> 4
BF GOODRICH
We manufacture and supply a wide variety of systems and component parts for
the aerospace industry and provide maintenance, repair and overhaul services on
commercial, regional, business and general aviation aircraft. We also
manufacture specialty plastics and specialty additives products for a variety of
end-user applications. In 1998, we had sales of $4.0 billion. We are organized
into two principal business segments: Aerospace and Performance Materials. We
maintain patent and technical assistance agreements, licenses and trademarks on
our products, process technologies and expertise in most of the countries in
which we operate.
Our principal executive offices are located at 4020 Kinross Lakes Parkway,
Richfield, Ohio 44286-9368 (telephone (330) 659-7600). We were incorporated
under the laws of the State of New York on May 2, 1912 as the successor to a
business founded in 1870.
CORPORATE DEVELOPMENTS
Our net income for the first quarter of 1999 was $65.8 million (excluding
special items), or 88 cents per diluted share, representing a 21% increase over
our first quarter 1998 net income of $54.2 million, or 77 cents per diluted
share. In addition, sales in the first quarter of 1999 increased to $1,035.6
million from $937.7 million in the first quarter of 1998.
On April 9, 1999, our shareholders and the shareholders of Coltec
Industries overwhelmingly approved the merger of the two companies.
You should see the discussions under "Recent Developments" and "Risk
Factors" in the accompanying prospectus, as well as the documents referred to in
"Where You Can Find More Information" in the accompanying prospectus for further
information regarding us and the merger.
USE OF PROCEEDS
We intend to use the net proceeds from the sale of the Notes (estimated to
be approximately $ after deduction of the underwriting discounts and
commissions and expenses payable by us) primarily to retire short-term debt
which we borrow on an overnight revolving basis. The debt bears interest at a
floating rate, currently approximately 5.2%. The amount of these borrowings
fluctuates from day to day. As of April 28, 1999, these borrowings totalled
approximately $147,600,000. Any proceeds not used to retire this indebtedness
will be used for general corporate purposes.
DESCRIPTION OF THE NOTES
The % Notes due 2009 (the "Notes") are a series of the "Debt
Securities" described in the accompanying prospectus. The following is a
description of the particular terms of the Notes. It should be read together
with the description of the general terms and provisions of the Debt Securities
set forth in the prospectus. If the description in this prospectus supplement
differs from the description in the prospectus, the description in this
prospectus supplement will control.
The Notes will be issued under an Indenture, dated as of May 1, 1991,
between the Company and Harris Trust and Savings Bank (the "Trustee"), as
amended or supplemented (the "Indenture").
S-3
<PAGE> 5
PRINCIPAL
The Notes will have a total principal amount of $200,000,000.
The maturity date for the Notes will be , 2009.
INTEREST
The Notes will bear interest at % per year, initially accruing from
, 1999.
We will pay interest on the Notes every and ,
beginning , 1999 to the persons in whose names the Notes are
registered as of the close of business on the preceding or
.
OPTIONAL REDEMPTION
We may redeem the Notes at our option at any time, as a whole or in part,
at a redemption price equal to the greater of (1) 100% of their principal amount
or (2) the sum of the present values of the remaining scheduled payments of
principal and interest thereon discounted to the date of redemption on a
semi-annual basis (assuming a 360-day year consisting of twelve 30-day months)
at the Treasury Rate plus basis points, plus, in either case, accrued and
unpaid interest on the principal amount being redeemed to such redemption date.
"Treasury Rate" means, with respect to any redemption date, (1) the yield,
under the heading which represents the average for the immediately preceding
week, appearing in the most recently published statistical release designated
"H.15(519)" or any successor publication which is published weekly by the Board
of Governors of the Federal Reserve System and which establishes yields on
actively traded United States Treasury securities adjusted to constant maturity
under the caption "Treasury Constant Maturities," for the maturity corresponding
to the Comparable Treasury Issue (if no maturity is within three months before
or after the Remaining Life, yields for the two published maturities most
closely corresponding to the Comparable Treasury Issue shall be determined and
the Treasury Rate shall be interpolated or extrapolated from such yields on a
straight line basis, rounding to the nearest month) or (2) if such release (or
any successor release) is not published during the week preceding the
calculation date or does not contain such yields, the rate per annum equal to
the semi-annual equivalent yield to maturity of the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury price for such redemption date. The Treasury Rate shall be calculated
on the third Business Day preceding the redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term (the "Remaining Life") of the Notes to be redeemed that would
be utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such Notes.
"Independent Investment Banker" means Morgan Stanley & Co. Incorporated or,
if such firm is unwilling or unable to select the Comparable Treasury Issue, an
independent investment banking institution of national standing appointed by the
Trustee.
"Comparable Treasury Price" means (1) the average of five Reference
Treasury Dealer Quotations for such redemption date, after excluding the highest
and lowest Reference Treasury Dealer Quotations, or (2) if the Independent
Investment Banker obtains fewer than five such Reference Treasury Dealer
Quotations, the average of all such quotations.
"Reference Treasury Dealer" means (1) Morgan Stanley & Co. Incorporated,
and and their respective successors, provided,
however, that if
S-4
<PAGE> 6
any of the foregoing shall cease to be a U.S. Government securities dealer in
New York City (a "Primary Treasury Dealer"), the BFGoodrich shall substitute
another Primary Treasury Dealer and (2) any other Primary Treasury Dealer
selected by the Independent Investment Banker after consultation with
BFGoodrich.
"Reference Treasury Dealer Quotation" means, with respect to each Reference
Treasury Dealer and any redemption date, the average, as determined by the
Independent Investment Banker, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Independent Investment Banker at 5:00 p.m., New York
City time, on the third Business Day preceding such redemption date.
ADDITIONAL TERMS
The Notes will be issued only in registered form in multiples of $1,000.
The Notes will not be subject to any sinking fund.
Any payment required to be made with respect to the Notes on a day that is
not a Business Day will be made on the next succeeding Business Day as if it had
been made on such day, and no interest shall accrue from and after that day to
the date of payment.
"Business Day" means any day that is not a Saturday or Sunday and that is
not a day on which banking institutions are generally authorized or obligated by
law to close in The City of New York.
So long as the Notes are represented by one or more global certificates,
the interest payable on the Notes will be paid to Cede & Co., the nominee of The
Depository Trust Company, or DTC, as Depositary, or its registered assigns.
These payments will be made by wire transfer of immediately available funds on
each of the applicable interest payment dates, before 2:30 p.m. (New York City
time). If the Notes are no longer represented by global certificates, payment of
interest may, at our option, be made by check mailed to the address of the
person entitled to payment. No service charge will be made for any transfer or
exchange of Notes, but we may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection with the a transfer or
exchange.
BOOK-ENTRY SYSTEM
The Notes will initially be issued in the form of one or more fully
registered global certificates (each, a "Book-Entry Note") that will be
deposited with the Depositary or its nominee. A Book-Entry Note may not be
transferred except as a whole between the Depositary and its nominee or to one
of their successors.
Upon the issuance of a Book-Entry Note, the Depositary will credit, on its
book-entry registration and transfer system, the respective principal amounts of
the Notes represented by that Book-Entry Note to the accounts of persons that
have accounts with the Depositary ("participants"). The underwriter[s]
participating in the distribution of the Notes will designate the accounts to be
credited. Only participants or persons that may hold interests through
participants can own beneficial interests in a Book-Entry Note. Ownership of
beneficial interests in Book-Entry Note will be shown on, and the transfer of
that ownership will be effected only through, records maintained by the
Depositary for the Book-Entry Note (with respect to interests of participants)
or by participants or persons that hold through participants (with respect to
interests of persons other than participants).
So long as the Depositary, or its nominee, is the registered owner of a
Book-Entry Note, the Depositary or such nominee, as the case may be, will be
considered the sole owner or holder of
S-5
<PAGE> 7
the Notes represented by that Book-Entry Note for all purposes under the
Indenture. Except as set forth below, owners of beneficial interests in a
Book-Entry Note will not be entitled to have the Notes represented by that
Book-Entry Note registered in their names, will not receive or be entitled to
receive physical delivery of their Notes in definitive form and will not be
considered the owners or holders of the Notes under the Indenture.
All payments on Notes represented by a Book-Entry Note will be made to the
Depositary or its nominee, as the case may be, as the registered owner of that
Book-Entry Note. The Company, the Trustee and any paying agent for such Notes
will not have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests in a
Book-Entry Note or for maintaining, supervising or reviewing any records
relating to those beneficial ownership interests.
We expect that the Depositary will upon receiving any payment relating to a
Book-Entry Note, immediately credit its participants' accounts with payments in
amounts proportionate to their respective beneficial interests in the principal
amount of that Book-Entry Note as shown on the Depositary's records. We also
expect that payments by participants to owners of beneficial interests in a
Book-Entry Note held through such participants will be governed by standing
instructions and customary practices, as is now the case with the securities
held for the accounts of customers registered in "street names" and will be the
responsibility of those participants.
If the Depositary is at any time unwilling or unable to continue as
Depositary and a successor Depositary is not appointed by us within 90 days, we
will issue Notes in definitive form in exchange for any Book-Entry Notes. In
addition, we may at any time and in our sole discretion decide not to have any
of the Notes represented by Book-Entry Notes. If this happens, we will issue
Notes in definitive form in exchange for all of the Book-Entry Notes
representing such Notes.
GOVERNING LAW
The Indenture and the Notes will be governed by and construed in accordance
with the laws of the State of New York.
UNDERWRITER[S]
Subject to the terms of the Underwriting Agreement, dated April , 1999
(the "Underwriting Agreement") between [Morgan Stanley & Co. Incorporated (the
"Underwriter")] [the underwriters named below (the "Underwriters")] and us, we
have agreed to sell to [the][each of the several] Underwriter[s], and
[each][the] Underwriter has [severally] agreed to purchase from us [all of the
Notes.] [the principal amount of the Notes set forth opposite its name below:
<TABLE>
<CAPTION>
PRINCIPAL AMOUNT
NAME OF NOTES
- ---- ----------------
<S> <C>
Morgan Stanley & Co. Incorporated.......................... $
[Additional Underwriters]..................................
Total................................................. $]
</TABLE>
The Underwriting Agreement provides that the obligations of the [several]
Underwriter[s] to pay for and accept delivery of the Notes are subject to, among
other things, the approval of certain legal matters by [their][its] counsel. The
Underwriter[s] [is][are] obligated to take and pay for all of the Notes if any
Notes are taken.
The Underwriter[s] propose[s] to offer the Notes directly to the public at
the initial public offering price set forth on the cover page of this prospectus
supplement and in part to certain dealers at prices that represent a concession
not in excess of . % of the principal amount of
S-6
<PAGE> 8
the Notes. Any Underwriter[s] may allow, and such dealers may reallow, a
concession not in excess of . % of the principal amount of the Notes to
certain other dealers. After the initial offering of the Notes, the offering
price and other selling terms may from time to time be varied by the
Underwriter[s].
We do not intend to apply for listing of the Notes on a national securities
exchange, but we have been advised by the Underwriter[s] that [it][they]
presently intend[s] to make a market in the Notes, as permitted by applicable
laws and regulations. The Underwriter[s] [is][are] not obligated, however, to
make a market in the Notes and any such market making may be discontinued at he
sole discretion of the Underwriter[s]. Accordingly, no assurance can be given as
to the liquidity of, or trading markets for, the Notes.
In order to facilitate the offering of the Notes, the Underwriter[s] may
engage in transactions that stabilize, maintain or otherwise affect the price of
the Notes. Specifically, the Underwriter[s] may over-allot in connection with
this offering, creating short positions in the Notes for [its][their] own
account. In addition, to cover over-allotments or to stabilize the price of the
Notes, the Underwriter[s] may bid for, and purchase, Notes in the open market.
Finally, the Underwriter[s] may reclaim selling concessions allowed to an
underwriter or dealer for distribution Notes in this offering, if the
Underwriters repurchase previously distributed Notes in transactions that cover
syndicate short positions, in stabilization transactions or otherwise. Any of
these activities may stabilize or maintain the market price of the Notes above
independent market levels. The Underwriter[s] [is][are] not required to engage
in these activities, and may end any of these activities at any time.
Settlement for the Notes will be made in immediately available funds and
all secondary trading in the Notes will settle in immediately available funds.
We have agreed to indemnify the several Underwriters against certain
liabilities, including liabilities under the Securities Act of 1933, as amended.
[Each of] the Underwriter[s] has rendered financial advisory services to us
from time to time and has received customary fees for its services. From time to
time the Underwriter[s] and certain of [its][their] affiliates have engaged, and
may in the future engage, in transactions with, and perform services for, us and
our affiliates in the ordinary course of business.
VALIDITY OF THE NOTES
Nicholas J. Calise, Esq., who is our Vice President, Associate General
Counsel and Secretary will issue an opinion about the validity of the Notes.
Sullivan & Cromwell, New York, New York, will issue an opinion about the
validity of the Notes to the Underwriters.
As of April 6, 1999, Mr. Calise owned 13,617 shares of the Company's Common
Stock; has deferred receipt of 6,079 shares of the Company's Common Stock under
the Company's Long Term Incentive Plan; has contingently credited to his account
5,918 phantom shares under the 1998-2000 and 1999-2001 Long Term Incentive Plan,
all of which are subject to forfeiture; held options to purchase 87,100 shares
of Common Stock; and had credited to his account in the Company's Retirement
Plus Savings Plan approximately 5,855 shares of Common Stock. In addition, Mr.
Calise's wife owns 1,000 shares, although Mr. Calise disclaims beneficial
ownership of these shares.
S-7
<PAGE> 9
SUBJECT TO COMPLETION, DATED APRIL 28, 1999
PROSPECTUS
THE B.F.GOODRICH COMPANY
4020 Kinross Lakes Parkway
Richfield, Ohio 44286-9368
(330) 659-7600
$200,000,000
DEBT SECURITIES
- --------------------------------------------------------------------------------
WE WILL PROVIDE SPECIFIED TERMS OF THESE SECURITIES IN SUPPLEMENTS TO THIS
PROSPECTUS.
YOU SHOULD READ THIS PROSPECTUS AND ANY SUPPLEMENT CAREFULLY BEFORE YOU INVEST.
- --------------------------------------------------------------------------------
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
This prospectus is dated April , 1999
2
<PAGE> 10
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
About This Prospectus....................................... 4
Where You Can Find More Information......................... 4
Forward-Looking Statements.................................. 5
Recent Developments......................................... 5
Risk Factors................................................ 6
The Company................................................. 8
Use of Proceeds............................................. 9
Ratio of Earnings to Fixed Charges.......................... 9
Description of Debt Securities.............................. 9
Plan of Distribution........................................ 17
Legal Opinions.............................................. 18
Experts..................................................... 19
Unaudited Pro Forma Condensed Combined Financial
Statements................................................ F-1
</TABLE>
3
<PAGE> 11
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
SEC using a "shelf" registration process. Under this shelf process, we may sell
the Debt Securities described in this prospectus in one or more offerings up to
a total dollar amount of $200,000,000.
This prospectus provides you with a general description of the securities
we may offer. Each time we sell securities, we will provide a prospectus
supplement that will contain specific information about the terms of the
securities offered. Each prospectus supplement may also add to or update or
change information contained in this prospectus. You should read both this
prospectus and any prospectus supplement together with additional information
described under the heading WHERE YOU CAN FIND MORE INFORMATION.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. Our SEC filings are available to the public over the
Internet at our website at http://www.bfgoodrich.com or from the SEC's web site
at http://www.sec.gov. You may also read and copy any document we file at the
SEC's public reference rooms in Washington, D.C., New York, New York and
Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for further information
on the public reference rooms and their copy charges. Certain of our securities
are listed on the New York Stock Exchange. You can obtain information about us
from the Exchange at 20 Broad Street, New York, New York 10005.
The SEC allows us to "incorporate by reference" in this prospectus the
information in documents filed with it. This means that we can disclose
important information to you by referring you to those documents. The
information incorporated by reference is considered to be a part of this
prospectus, and information in documents that we file later with the SEC will
automatically update and supersede information contained in documents filed
earlier with the SEC or contained in this prospectus. We incorporate by
reference in this prospectus the documents listed below and any future filings
that we may make with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the
Securities Exchange Act of 1934 until we, or our agents, sell all of the
securities that may be offered by this prospectus.
- BFGoodrich Annual Report on Form 10-K for the year ended December 31,
1998.
- BFGoodrich Current Reports on Form 8-K filed on February 19, 1999,
February 25, 1999, April 12, 1999 and April 20, 1999.
- Coltec Industries Annual Report on Form 10-K for the year ended December
31, 1998 (Item 8 on pages 26-60 and pages S-1 to S-3, only)
- Coltec Industries Current Report on Form 8-K filed on April 28, 1999.
You may request a copy of these documents at no cost to you, by writing or
telephoning us at the following address:
The B.F.Goodrich Company
4020 Kinross Lakes Parkway
Richfield, Ohio 44286-9368
Attention: Secretary
(330) 659-7600
4
<PAGE> 12
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different information. We are not making an
offer of the securities described in this prospectus in any state where the
offer is not permitted. You should not assume that the information in this
prospectus or any prospectus supplement is accurate as of any date other than
the date on the front of those documents.
FORWARD-LOOKING STATEMENTS
We believe that some of the information presented in or incorporated by
reference in this prospectus constitutes "forward-looking statements" within the
meaning of Section 27A of the Securities Act of 1933. These forward-looking
statements are based on management's assumptions, expectations and projections
about us and the industries in which we operate. Our Annual Report on Form 10-K
for the year ended December 31, 1998 explains the nature of a number of these
forward-looking statements as well as some of the things that could cause our
actual results to differ materially from what we are expecting. You should read
that explanation before investing in our debt securities. In addition, this
prospectus describes a number of factors, especially with regard to risks we
face with respect to the our merger with Coltec Industries Inc, potential
environmental and asbestos-related litigation, our vulnerability to economic
downturns in the United States and abroad and the "year 2000" problem, which
could each cause our actual results to differ materially from our expectations.
RECENT DEVELOPMENTS
In November 1998, we executed an agreement to merge with Coltec Industries,
a producer of aerospace and industrial products, by exchanging each share of
common stock of Coltec for 0.56 shares of our common stock. When we complete the
merger, Coltec will be a direct wholly-owned subsidiary of BFGoodrich. We expect
the merger to be accounted for as a pooling of interests, which means that we
will treat BFGoodrich and Coltec as if they always had been one company for
accounting and financial reporting purposes.
We have received all regulatory approvals necessary to complete the merger
and the shareholders of each company have overwhelmingly approved the merger.
AlliedSignal Inc. and Crane Co. have filed lawsuits in the U.S. District Court
in South Bend, Indiana seeking to block the merger. We have agreed not to
consummate the merger until the court rules on certain pending motions. In any
event, this agreement to delay the merger expires May 1, 1999. AlliedSignal has
filed a motion for a temporary restraining order and preliminary injunction to
prevent the merger. We will oppose AlliedSignal's motion. A hearing on this
motion is scheduled for 4:00 p.m. on Friday, April 30, 1999. We cannot assure
you if or when the merger will be completed.
You should see the Unaudited Pro Forma Condensed Combined Financial
Statements beginning on page F-1 for certain financial information relating to
the merger.
5
<PAGE> 13
RISK FACTORS
You should carefully consider the following risks before deciding to invest
in our debt securities.
WE MAY NOT BE ABLE TO ACHIEVE THE EXPECTED INTEGRATION AND COST SAVINGS FROM THE
MERGER, AND THAT FAILURE COULD ADVERSELY AFFECT OUR EARNINGS AND FINANCIAL
CONDITION.
We expect to achieve cost savings from our merger with Coltec. By the year
2001, we believe the cost savings could be $60 million per year. Difficulties
may arise, however, in the integration of the business and operation of the
combined entity. As a result, we may not be able to achieve the cost savings and
synergies that we expect will result from the merger. Achieving cost savings
depends on consolidating our corporate and aerospace staffs with Coltec's
corporate staff in Charlotte, North Carolina and achieving other synergies in
combining our two organizations. Additional operational savings depend upon the
integration of our aerospace business and Coltec's aerospace business and the
elimination of duplicate facilities and excess capacity. Actual savings in 1999
may be materially less than expected if the merger is delayed beyond May 1,
1999, if the reorganization of both companies' staffs is delayed beyond what we
anticipate or if the reductions in personnel are less than we currently
envision. We expect material cost savings from the reduction in personnel.
WE MAY HAVE LIABILITIES RELATED TO ASBESTOS LITIGATION WHICH COULD ADVERSELY
AFFECT OUR EARNINGS AND FINANCIAL CONDITION.
The historical business operations of Coltec have resulted in a substantial
volume of asbestos litigation. Plaintiffs in these matters have alleged personal
injury or death as a result of exposure to asbestos contained in some products
that were manufactured or distributed by two of Coltec's subsidiaries. We
believe that the funding agreements with Coltec's insurance carriers will
provide resources sufficient to meet the vast majority of the currently
anticipated costs and expenses associated with known and pending litigation. It
is difficult to predict the number of asbestos lawsuits that Coltec's
subsidiaries will be party to in the future. These future claims and insurance
and other related costs may result in future liabilities that are significant
and may be material.
WE MAY HAVE LIABILITIES RELATING TO ENVIRONMENTAL LAWS AND REGULATIONS WHICH
COULD ADVERSELY AFFECT OUR EARNINGS AND FINANCIAL CONDITION.
We and Coltec generate both hazardous and non-hazardous wastes. The
treatment, storage, transportation and disposal of these hazardous and
non-hazardous wastes are governed by various environmental laws and regulations.
We have been notified that we and Coltec have been designated as potentially
responsible parties by the U.S. Environmental Protection Agency for the costs of
investigating and, in some cases, remediating contamination by hazardous
materials at several sites, most of which related to businesses previously
discontinued. Liability for these costs may be imposed on present and former
owners or operators of the properties or on parties who generated the wastes
that contributed to the contamination.
THE CYCLICAL NATURE OF OUR BUSINESS COULD ADVERSELY AFFECT OUR EARNINGS AND
FINANCIAL CONDITION.
The business sectors to which we sell our product are, to varying degrees,
cyclical and have historically experienced periodic downturns. These downturns
have often had a negative effect on demand for our products resulting in lower
net sales, gross margin and net income. Any future material weakness in demand
in any of these business sectors could have a material
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adverse effect on our earnings and financial condition. In addition, some of our
competitors have greater financial resources than we do and may be better able
to withstand the effects of those periodic downturns.
THE DOWNTURN IN ASIA COULD CONTINUE TO ADVERSELY AFFECT OUR EARNINGS AND
FINANCIAL CONDITION.
The current economic downturn in some Asian countries has adversely
affected and could continue to aversely affect the worldwide aerospace industry.
According to industry analysts, as a result of the recession in Japan, as well
as currency fluctuations and other problems in other Asian countries, Asian
airlines have slowed purchases of new aircraft. The reduction in demand for new
aircraft has led and could continue to lead aircraft manufacturers to build
fewer aircraft than they might otherwise have built. As a result, we have
experienced and could continue to experience delays or cancellations of orders
for our products for aircraft. Those delays or cancellations could seriously
harm our earnings and financial condition.
OUR DEPENDENCE UPON CURRENT CONDITIONS IN THE AIRLINE INDUSTRY COULD ADVERSELY
AFFECT OUR EARNINGS AND FINANCIAL CONDITION.
The airline industry is undergoing a process of consolidation and
significantly increased competition. This consolidation could result in a
reduction of future aircraft orders as overlapping routes are eliminated and
airlines seek greater economies through higher aircraft utilization. Increased
airline competition may also result in airlines seeking to reduce costs by
promoting greater price competition from aerospace suppliers, which could
adversely affect our earnings and financial condition.
THE FINANCIAL RESULTS OF OUR PERFORMANCE MATERIALS SEGMENT COULD BE ADVERSELY
AFFECTED IF GROWTH IN DEMAND FOR PERFORMANCE MATERIALS DOES NOT OCCUR OR COST
REDUCTIONS ARE NOT ACHIEVED AS WE EXPECT.
Our financial results could be adversely affected if the expected growth in
volume demand for performance materials does not occur as we expect. Recent
turmoil in the financial markets in the Far East and Latin America could
adversely impact sales increases in those regions. Our financial results could
also be adversely affected if we do not achieve cost reduction benefits as we
integrate recent acquisitions and continue the realignment activities of
BFGoodrich and Coltec.
COMPUTER SYSTEM FAILURES OR MISCALCULATIONS RESULTING FROM AN INABILITY TO
INTERPRET DATES BEYOND 1999 COULD MATERIALLY AND ADVERSELY AFFECT OUR
OPERATIONS.
Any computer equipment that uses two digits instead of four to specify the
year will be unable to interpret dates beyond the year 1999. This "year 2000"
issue could result in system failures or miscalculations causing disruptions of
operations. The three major areas that could be affected critically are
financial and operating systems, manufacturing systems and equipment, and
third-party relationships with suppliers and customers. We have developed plans
to address this exposure. However, we cannot assure you that these plans are
adequate to prevent or minimize such system failures or miscalculations.
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THE COMPANY
We manufacture and supply a wide variety of systems and component parts for
the aerospace industry and provide maintenance, repair and overhaul services on
commercial, regional, business and general aviation aircraft. We also
manufacture specialty plastics and specialty additives products for a variety of
end-user applications. In 1998, we had sales of $4.0 billion. We are organized
into two principal business segments: Aerospace and Performance Materials. We
maintain patent and technical assistance agreements, licenses and trademarks on
our products, process technologies and expertise in most of the countries in
which we operate.
AEROSPACE
Our Aerospace Segment is conducted through four major business groups.
- Our Aerostructures Group primarily designs, develops and integrates
aircraft engine nacelle and pylon systems and provides support services.
- Our Landing Systems Group manufactures aircraft landing gear; aircraft
wheels and brakes; high-temperature composites; aircraft evacuation
slides and rafts for commercial, military, regional and business aviation
customers, and space programs.
- Our Sensors and Integrated Systems Group manufactures sensors and
sensor-based systems; fuel measurement and management systems;
electromechanical actuators; aircraft windshield wiper systems; health
and usage management systems; electronic test equipment; ice protection
systems; specialty heated products; collision warning systems; weather
detection systems; standby altitude indicators; aircraft lighting
components; and polymer and composite products for commercial, military,
regional, business and general aviation customers, and for aircraft
engine and space programs.
- Our Maintenance, Repair and Overhaul Group provides maintenance, repair
and overhaul of commercial airframes, components, wheels and brakes,
landing gear, instruments and avionics for commercial, regional, business
and general aviation customers.
PERFORMANCE MATERIALS
Our Performance Materials Segment is conducted through three major business
groups.
- Our Textile and Industrial Coatings Group manufactures acrylic textile
coatings and industrial formulations of Carbopol(R) polymers for textile
printing. This group also manufactures durable press resins, dyes and
softeners, as well as paper saturants and coatings in wood, metal and
other surface finishing products and in graphic arts applications.
- Our Consumer Specialties Group manufactures thickening, suspension and
emulsion polymers for personal care products and for household and
pharmaceutical applications.
- Our Polymer Additives & Specialty Plastics Group manufactures
thermoplastic polyurethane and alloys, high-heat-resistant and
low-combustibility plastics, static-dissipating polymers,
reaction-injection molding resins, and antioxidants for rubber, plastic
and lubricants applications. We market and sell these products to
manufacturers for film and sheet applications, wire and cable jacketing,
and magnetic media. Specialty plastics are also used in the manufacture
of automotive products, recreational vehicles and products, agricultural
equipment, industrial equipment, tire and rubber goods, plumbing and
industrial pipe, fire sprinkler systems and building material components.
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USE OF PROCEEDS
Unless we state otherwise in a prospectus supplement, the net proceeds from
the sale of the securities that are offered for sale will be used for general
corporate purposes.
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges for each of the periods indicated is
as follows:
<TABLE>
<CAPTION>
TWELVE MONTHS ENDED DEC. 31,
- --------------------------------
1998 1997 1996 1995 1994
- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C>
4.33.. 2.98 2.39 2.16 1.87
</TABLE>
For these ratios, "earnings" consists of income from continuing operations
before income taxes, fixed charges (excluding capitalized interest and
distributions on quarterly income preferred securities), amortization of
previously capitalized interest and undistributed earnings (losses) of
affiliated companies which are accounted for on the equity method. For this
purpose, "fixed charges" consists of (1) interest on all indebtedness (including
capitalized interest and interest costs on company-owned life insurance
policies), (2) amortization of debt discount or premium, (3) an interest factor
attributable to rentals and (4) distributions on quarterly income preferred
securities.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will be issued under an Indenture between us and Harris
Trust and Savings Bank as Trustee dated as of May 1, 1991.
We have summarized below selected provisions of the Indenture and the Trust
Indenture Act of 1939, as amended. The summary is not complete. The Indenture
has been filed as an exhibit to our registration statement on Form S-3,
Registration No. 33-65658. The following summary is subject to the detailed
provisions of the Indenture and the Trust Indenture Act of 1939. In the summary
below, we have included references to section numbers of the Indenture so that
you can easily locate these provisions. The referenced sections of the Indenture
are incorporated in this prospectus by reference.
GENERAL
The Debt Securities offered by this prospectus are limited to $200,000,000
in aggregate principal amount. The Indenture does not limit the amount of Debt
Securities that we may issue. Unless we state otherwise in a prospectus
supplement, the Indenture does not limit the amount of other debt that we can
issue.
The Indenture allows us to issue Debt Securities in one or more series. The
prospectus supplement for a series of Debt Securities being offered will include
specific terms of the Debt Securities. These terms will include some or all of
the following:
- the title of the Debt Securities;
- the total principal amount and the permitted denominations of the Debt
Securities;
- the percentage of principal amount of the Debt Securities at which the
Debt Securities will be issued;
- the currency or currencies in which the principal of and interest, if
any, on the Debt Securities will be payable;
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- the date on which the Debt Securities will be payable;
- the interest rate, if any, for the Debt Securities or the method that
will be used to determine the interest rate;
- the dates on which and places at which interest, if any, will be payable;
- any mandatory or optional repayment or redemption provisions; and
- any other terms of the Debt Securities.
The Indenture allows us to issue Debt Securities of a single series at
various times, with different maturity dates and redemption and repayment
provisions, if any, and different interest rates. (Section 2.5) The prospectus
supplement will specify the persons to whom and the manner in which interest, if
any, will be payable.
The Debt Securities will be unsecured, unsubordinated indebtedness of BF
Goodrich. The Debt Securities will rank equally with all of our other unsecured
and unsubordinated indebtedness.
The Debt Securities will be issued in fully registered form and in the
denominations set forth in the applicable prospectus supplement. We will
maintain an office or agency where the Debt Securities may be presented for
payment and may be transferred or exchanged. (Section 3.2) There will be no
service charge for any transfer or exchange of the Debt Securities, but we may
require a payment sufficient to cover any tax or other governmental charge
payable on the Debt Securities. (Section 2.10)
Some of the Debt Securities may be sold at a substantial discount below
their stated principal amount and may provide for the payment of no interest or
interest at a rate which at the time of issuance is below market rates. We will
describe the U.S. federal income tax consequences and other special
considerations applicable to any discounted Debt Securities in the prospectus
supplement relating to the discounted Debt Securities.
BOOK-ENTRY PROCEDURES
The Debt Securities may be issued in the form of one or more global
certificates registered in the name of a depositary or a nominee of a
depositary. Unless otherwise specified in the applicable prospectus supplement,
the depositary will be The Depository Trust Company, or "DTC." DTC has informed
us that its nominee will be Cede & Co., who will therefore be the initial
registered holder of any series of Debt Securities that are issued in global
form.
If we use the book-entry only form, we will not issue certificates to
individual holders of the Debt Securities, except as set forth in the applicable
prospectus supplement. Beneficial interests in global securities will be shown
on, and transfers of global securities will be made only through, records
maintained by DTC, Cede and their participating organizations. In addition, all
actions by holders of Debt Securities issued in global form shall be actions
taken by DTC upon instructions from its participating organizations, and all
payments and notices to holders shall be to DTC or Cede, as the registered
holder of the Debt Securities.
DTC has provided us with the following information: DTC is a limited
purpose trust company organized under the New York Banking Law, a "banking
organization" within the meaning of the New York Banking Law, a member of the
United States Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code and a "clearing agency"
registered under Section 17A of the Securities Exchange Act of 1934. DTC holds
securities that its participating organizations, or direct participants, deposit
with DTC. DTC also facilitates the clearance and settlement of securities
transactions among direct
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participants through electronic book-entry, thereby eliminating the need for
physical exchange of certificates. Direct participants include securities
brokers and dealers, banks, trust companies, clearing corporations and certain
other organizations. Other organizations such as banks, brokers, dealers and
trust companies that work with a direct participant also use DTC's book-entry
system, or indirect participants. The rules that apply to DTC and its direct
participants are on file with the SEC.
DTC management is aware that some computer applications and systems for
processing data that are dependent upon calendar dates, including dates before,
on or after January 1, 2000, may encounter "Year 2000 problems." DTC has
informed its direct participants and other members of the financial community
that it has developed and is implementing a program so that its computer
applications and systems, as the same relate to the timely payment of
distributions (including principal and interest payments) to security holders,
book-entry deliveries and settlement of trades within DTC, continue to function
appropriately. This program includes a technical assessment and remediation
plan, both of which are complete. Additionally, DTC's plan includes a testing
phase, which is expected to be completed within appropriate time frames.
However, DTC's ability to perform its services properly is also dependent
upon other parties, including but not limited to issuers and their agents, as
well as third-party vendors from whom DTC licenses software and hardware, and
third-party vendors on whom DTC relies for information or the provision of
services, including telecommunication and electric utility service providers,
among others. DTC has informed its direct participants and other members of the
financial community that it is contacting (and will continue to contact)
third-party vendors from whom DTC acquires services to: (1) impress upon them
the importance of such services being Year 2000 compliant and (2) determine the
extent of their efforts for Year 2000 remediation (and, as appropriate, testing)
of their services. In addition, DTC is in the process of developing contingency
plans that it deems appropriate.
Purchases, sales or other transfers of Debt Securities must be done through
a Direct or indirect participant. Under a book-entry format, holders of Debt
Securities may experience some delay in their receipt of payments. Holders will
not be recognized as registered holders of the Debt Securities and, thus, will
be permitted to exercise their rights only indirectly through and subject to the
procedures of direct participants and, if applicable, indirect participants.
The ability of a holder to pledge Debt Securities to persons or entities
that do not participate in the DTC system, or to otherwise act with respect to
the Debt Securities, may be limited due to the absence of physical certificates.
DTC has advised us that it will only take any action permitted to be taken
by a registered holder of any Debt Securities at the direction of a direct
participant.
Debt Securities represented by a global security will be exchangeable for
the Debt Securities in registered form with the same terms only if:
- DTC notifies us that it is unwilling or unable to continue as depositary
or DTC ceases to be a clearing agency registered under applicable law;
- we determine that the global security is now exchangeable; or
- an event of default has occurred and is continuing with respect to the
Debt Securities.
If any of these events occur, DTC will generally notify all direct
participants of the availability of definitive Debt Securities.
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<PAGE> 19
Except as described in this section, a global security may not be
transferred except as a whole by DTC to its nominee or by its nominee to DTC or
another of its nominees or to a successor depositary appointed by us.
We have obtained the information regarding DTC and DTC's book-entry system
from sources that we believe to be reliable, but we take no responsibility for
the accuracy of that information.
CERTAIN COVENANTS
The Indenture requires us to comply with certain restrictive covenants.
Some of the provisions are described below.
Definitions
"Subsidiary" is defined as any company in which we, or one or more of our
subsidiaries, own directly or indirectly at least a majority of outstanding
voting stock. (Section 1.1)
"Restricted Subsidiary" is defined as any Subsidiary (1) with substantially
all of its property located, or carrying on substantially all of its business
within, the United States and (2) which owns a Principal Property. "Restricted
Subsidiary", however, does not include any Subsidiary whose primary business
consists of (1) financing operations in connection with leasing and conditional
sales transactions on behalf of us and our Subsidiaries, (2) purchasing accounts
receivable or making loans secured by accounts receivable or inventory, or (3)
whose primary business is that of a finance company. As of the date of this
prospectus, there are no Restricted Subsidiaries.
"Principal Property" is defined as any building, structure or other
facility, the land upon which it stands and the fixtures that are a part of it,
(1) which is used primarily for manufacturing and is located in the United
States, and (2) the net book value of which exceeds 3% of Consolidated Net
Tangible Assets. Principal Property does not include (1) any building, structure
or facility which is not of material importance to our total business or (2) any
portion of a particular building, structure or facility which is not of material
importance to the use or operation of the building, structure or facility.
"Consolidated Net Tangible Assets" is defined as the total amount of assets
(minus applicable reserves and deductibles) minus (1) all current liabilities
(excluding (a) those which are extendible or renewable to more than 12 months
after the time as of which the amount of the liability is being computed, (b)
current maturities of long-term indebtedness and (c) capital lease obligations)
and (2) all goodwill.
"Attributable Debt" with respect to any lease is defined as the lesser of
(1) the fair value of the property subject to such lease or (2) the present
value of the total net amount of rent we must pay under such lease until it
expires, compounded semiannually. The net amount of rent we must pay under any
lease for any period is the amount of rent payable for the period, excluding
payments for maintenance and repairs, insurance, taxes, assessments, water rates
and similar charges. For any lease which we may terminate by paying a penalty,
the net amount of rent includes the penalty, but no rent is included after the
first date upon which the lease may be terminated.
"Funded Debt" is defined as all debt (1) with a maturity of more than 12
months after the date on which the amount of indebtedness is determined or (2)
with a maturity that is less than 12 months but which is renewable or extendible
at the borrower's option.
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Limitation on Liens
The Indenture will prohibit us or our Restricted Subsidiaries from
incurring, issuing, assuming or guarantying any debt for money borrowed or any
debt evidenced by notes, bonds, debentures or other similar documents ("Debt")
(other than guarantees related to the sale, discount, guarantee or pledge of
notes, chattel mortgages, leases, accounts receivable, trade acceptances and
other paper arising in the ordinary course of business out of installment or
conditional sales) without securing all outstanding series of Debt Securities
(other than any series of Debt Securities that provide that the Debt Securities
of the series are not entitled to the benefit of this covenant) equally and
ratably with (or prior to) the secured Debt to be incurred, issued, assumed or
guaranteed, unless the aggregate principal amount of such secured Debt together
with all secured Debt which would otherwise be prohibited, plus all Attributable
Debt of the Company and its Restricted Subsidiaries in respect of sale and
leaseback transactions which would otherwise be prohibited by the covenant
limiting sale and leaseback transactions described below would not exceed the
sum of 10% of Consolidated Net Tangible Assets.
The restriction described above will not apply to debt for borrowed money
secured by the following:
- liens on property, stock or Debt of any corporation existing at the time
it becomes a Restricted Subsidiary;
- liens to secure indebtedness of a Restricted Subsidiary to us or to
another Restricted Subsidiary;
- liens for taxes, assessments or governmental charges or levies (a) that
are not yet due and delinquent or (b) the validity of which is being
contested, or deposits to obtain the release of these mortgages;
- liens of materialmen, mechanics, carriers, workmen, repairmen, landlords
or other similar mortgages, or deposits to obtain the release of these
mortgages;
- liens arising under legal process the execution or enforcement of which
is stayed and which are being contested in good faith;
- liens (a) to secure public or statutory obligations, (b) to secure
payment of workmen's compensation, (c) to secure performance in
connection with tenders, leases of real property, bids or contracts or
(d) to secure (or in lieu of) surety or appeal bonds, and mortgages made
in the ordinary course of business for similar purposes;
- liens in favor of the United States, any state in the United States, any
other country, or any governmental entity or any political subdivision
thereof, to secure payments pursuant to any contract or statute or to
secure any debt incurred to finance the purchase price or the cost of
construction of the property subject to the mortgage;
- liens on property, stock or Debt of a corporation (a) existing at the
time we acquired the corporation (including corporations with which we
merged or consolidated or purchased substantially all the properties of),
(b) that secure the payment of purchase price, construction cost or
improvement cost thereof or (c) that secure any Debt incurred prior to,
at the time of, or within one year after we acquired the property, shares
or Debt, completed the construction on or commenced commercial operation
of the property for the purpose of financing the purchase price or
construction cost;
- mortgages existing at the date of the Indenture; and
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- any extension, renewal or replacement of any of these mortgages that does
not increase the Debt and that is limited to all or a part of the same
property, stock or Debt that secured the original mortgage.
(Section 3.4)
Limitation on Sales and Leasebacks
The Indenture provides that neither we nor any Restricted Subsidiary may
enter into most sale and lease-back transactions involving any Principal
Property which has been or is to be sold or transferred by us or such Restricted
Subsidiary, unless either:
- we or any Restricted Subsidiary could create Debt secured by a mortgage
on the Principal Property to be leased back in an amount equal to the
Attributable Debt with respect to such sale and leaseback transaction
without equally and ratably securing the Debt Securities of all series
pursuant to the provisions of the covenant on limitation on liens
described above; or
- we apply within 270 days after the sale or transfer an amount equal to
the greater of (1) the net proceeds of the sale of the Principal Property
sold and leased back pursuant to the arrangement or (2) the fair market
value of the Principal Property so sold and leased back at the time of
entering into the arrangement to (a) the purchase of different property,
facilities or equipment which has a value at least equal to the net
proceeds of the sale or (b) the retirement of Funded Debt of the Company
(other than Debt Securities of any series); provided, however, that the
amount to be applied to the retirement of Funded Debt of the Company
shall be reduced by (1) the principal amount of any Debt Securities of
any series (or, if the Debt Securities of any series are original issue
discount Debt Securities, the portion of the principal amount that is due
and payable with respect to such series pursuant to a declaration in
accordance with Section 5.1 of the Indenture) delivered within 270 days
after such sale to the Trustee for retirement and cancellation and (2)
the principal amount of Funded Debt, other than the Debt Securities of
any series, voluntarily retired by the Company within 270 days after such
sale. No retirement referred to in this clause may be effected by payment
at maturity or pursuant to any mandatory sinking fund payment or any
mandatory prepayment provision.
(Section 3.5)
Absence of Other Restrictions
The Indenture does not contain (1) any restrictions on the declaration of
dividends; (2) any requirements concerning the maintenance of any asset ratio;
or (3) any requirement for the creation or maintenance of reserves.
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CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
The Indenture permits us to consolidate or merge with or into another
entity, or to sell, convey or lease all or substantially all of our property to
another entity only if certain conditions in the Indenture are met including:
- the successor corporation or purchaser expressly assumes our obligations
on the Debt Securities and under the Indenture; and
- performance and observance of all covenants and conditions in the
Indenture.
(Article Eight)
EVENTS OF DEFAULT, WAIVER AND NOTICE
Unless we tell you otherwise in an accompanying prospectus supplement,
"Event of Default" when used in an Indenture will mean any of the following:
- failure to pay any installment of interest on the Debt Securities for a
period of 10 days;
- failure to pay the principal and premium, if any, on the Debt Securities;
- failure to deposit any sinking fund payment on the Debt Securities;
- failure to perform any other covenant or agreement in the Indenture that
continues for 90 days after we have been given written notice of such
failure;
- acceleration of a BFGoodrich debt with a principal amount of more than
$50,000,000 that is not rescinded or annulled within 10 days after
written notice of such acceleration;
- certain events of bankruptcy, insolvency and reorganization of
BFGoodrich; and
- any other Event of Default established with respect to Debt Securities of
that series.
(Sections 2.5 and 4.1)
Within 90 days after the occurrence of a default (without regard to any
grace periods) the Trustee will give all holders of Debt Securities of the
affected series notice of all uncured defaults known to it. Except in the case
of a default in the payment of principal (and premium, if any) or interest, if
any, or in the payment of any sinking fund installment, the Trustee may withhold
such notice if it in good faith determines that withholding such notice is in
the interest of the holders. (Trust Indenture Act)
If an Event of Default occurs and continues, either the Trustee or the
holders of at least 25% in aggregate principal amount of the Debt Securities of
the series may declare the principal (or, in the case of original issue discount
Debt Securities, the portion specified in the applicable prospectus supplement)
of the Debt Securities of the series and the accrued interest, if any, to be due
and payable immediately. If this happens, subject to certain conditions, the
holders of a majority of the aggregate principal amount of the Debt Securities
of the series can annul the declaration of acceleration and waive past defaults
(except for uncured defaults in the payment of principal (or premium, if any) or
interest, if any. (Sections 4.1 and 4.9)
We must file with the Trustee annually a written statement regarding the
presence or absence of certain defaults (Trust Indenture Act).
If a default or an Event of Default occurs and continues, the holders of at
least a majority in aggregate principal amount of the Debt Securities of the
series may direct the time, method and place of conducting any proceeding or
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee by the Indenture. (Section 4.8)
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The Trustee does not have to exercise any of its rights or powers at the
direction of the holders of Debt Securities unless the holders offer the Trustee
reasonable security or indemnity against expenses and liabilities. (Section
5.1(d))
DEFEASANCE
DEFEASANCE AND DISCHARGE
The Indenture provides that we will be discharged from any and all
obligations in respect of the Debt Securities of any series (except for certain
transfer obligations), if we deposit with the Trustee, in trust, money and/or
U.S. government obligations which will provide enough money to pay the principal
of and each installment of interest on the Debt Securities of the series on the
stated maturity of such payments in accordance with the terms of the Indenture
and the Debt Securities of such series. (Section 12.2)
Such a trust may only be established if, among other things, we have
delivered to the Trustee an opinion of counsel stating that, due to an Internal
Revenue Service ruling or a change in Federal income tax law, holders of the
Debt Securities of such series will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to Federal income tax on the same amount and in
the same manner and at the same times, as would have been the case if such
deposit, defeasance and discharge had not occurred. (Section 12.4)
DEFEASANCE OF CERTAIN COVENANTS AND CERTAIN EVENTS OF DEFAULT
The Indenture provides that we may omit to comply with certain restrictive
covenants in Sections 3.4 and 3.5, and Section 4.1(d) (described above in the
fourth bullet point under "Events of Default, Waiver and Notice") without
triggering an Event of Default under the Indenture and the Debt Securities of a
series, if we deposit with the Trustee, in trust, money and/or U.S. government
obligations which through the payment of interest and principal thereon will
provide enough money to pay the principal of and each installment of interest on
the Debt Securities of such series on the stated maturity of such payments in
accordance with the terms of the Indenture and the Debt Securities of such
series. Our other obligations under the Indenture and the Debt Securities of
such series and other Events of Default shall remain in full force and effect.
(Section 12.3)
Such a trust may only be established if, among other things, we have
delivered to the Trustee an opinion of counsel stating that the holders of the
Debt Securities of such series will not recognize income, gain, or loss for
Federal income tax purposes as a result of such deposit and defeasance of
certain covenants and Events of Default and will be subject to Federal income
tax on the same amounts and in the same manner and at the same times, as would
have been the case if such deposit and defeasance had not occurred. (Section
12.4)
If we exercise the option described in this section and the Debt Securities
of such series are declared due and payable because of the occurrence of any
Event of Default (other than the Event of Default described above in the fourth
bullet point under "Events of Default, Waiver and Notice"), the amount of money
and U.S. government obligations on deposit with the Trustee will be sufficient
to pay amounts due on the Debt Securities of such series at the time of their
stated maturity but may not be sufficient to pay amounts due on the Debt
Securities of such series at the time of the acceleration resulting from such
Event of Default.
16
<PAGE> 24
CHANGES TO THE INDENTURE
Holders who own not less than 50% in principal amount of the outstanding
Debt Securities of each series affected can agree to change the Indenture or the
rights of the holders of the Debt Securities. However, no change without your
consent can affect:
- the fixed maturity;
- the principal or premium amount;
- the rate or the time of payment of interest;
- the currency;
- the portion of the principal amount of an original issue discount Debt
Security due and payable upon acceleration of the maturity thereof;
- the portion of the principal amount of a Debt Security provable in
bankruptcy;
- amounts payable upon redemption;
- the overdue rate;
- any right of repayment at the option of the holder of a Debt Security; or
- the percentage of principal amount of the outstanding Debt Securities of
each series affected the holders of which may change the terms discussed
above.
(Section 7.2)
We may amend the Indenture in certain circumstances without your consent to
evidence the merger of BFGoodrich or the replacement of the Trustee and for
certain other purposes. (Section 7.1)
CONCERNING THE TRUSTEE
We maintain deposit accounts and conduct other banking transactions with
the Trustee in the ordinary course of our business.
PLAN OF DISTRIBUTION
We may sell the Debt Securities (a) to or through underwriters or dealers;
(b) directly to one or more purchasers or (c) through agents.
BY UNDERWRITERS
If underwriters are used in the sale, the offered securities will be
acquired by the underwriters for their own account. The underwriters may resell
the securities in one or more transactions, including negotiated transactions,
at a fixed public offering price or at varying prices determined at the time of
sale. The obligations of the underwriters to purchase the securities will be
subject to certain conditions. The underwriters will be obligated to purchase
all the Debt Securities offered if any of the Debt Securities are purchased. Any
initial public offering price and any discounts or concessions allowed or
re-allowed or paid to dealers may be changed from time to time.
17
<PAGE> 25
DIRECT SALES
Debt Securities may also be sold directly by us. In this case, no
underwriters or agents would be involved.
BY AGENTS
Debt Securities may be sold through agents designated by us. The agents
agree to use their reasonable best efforts to solicit purchases for the period
of their appointment.
GENERAL INFORMATION
Underwriters, dealers and agents that participate in the distribution of
the offered securities may be underwriters as defined in the Securities Act of
1933, and any discounts, concessions or commissions that we pay them and any
profit on their resale of the offered securities may be treated as underwriting
discounts, concessions and commissions under the Securities Act. We will
identify any underwriters or agents and describe their compensation in a
prospectus supplement.
We may have agreements with the underwriters, dealers and agents who
participate in the sale of Debt Securities to indemnify them against certain
civil liabilities, including liabilities under the Securities Act, or to
contribute with respect to payments which the underwriters, dealers or agents
may be required to make.
Underwriters, dealers and agents may engage in transactions with, or
perform services for, us or our subsidiaries in the ordinary course of their
businesses.
The Debt Securities, when first issued, will have no established trading
market. Any underwriters or agents to or through whom Debt Securities are sold
by us for public offering and sale may make a market in the Debt Securities; but
such underwriters or agents will not be obligated to do so and may discontinue
any market making at any time without notice. No assurance can be given as to
the liquidity of the trading market for any Debt Securities.
In connection with an offering of Debt Securities, underwriters or agents
may purchase and sell the Debt Securities in the open market. These transactions
may include over-allotment and stabilizing transactions, purchases to cover
syndicate short positions created in connection with the offering and penalty
bids. Over-allotment involves sales in excess of the offering size, which
creates a short position. Stabilizing transactions consist of bids or purchases
for the purpose of preventing or retarding a decline in the market price of Debt
Securities and are permitted so long as the stabilizing bids do not exceed a
specified maximum. Syndicate short positions involve the sale by the
underwriters or agents of a greater number of Debt Securities than they are
required to purchase from us in the offering. The underwriters or agents also
may impose a penalty bid which permits them to reclaim selling concessions
allowed to syndicate members or certain dealers if they repurchase the Debt
Securities in stabilizing or covering transactions. These activities may
stabilize, maintain or otherwise affect the market price of the Debt Securities,
which may be higher than the price that might otherwise prevail in the open
market. These activities, if commenced, may be discontinued at any time. These
transactions may be effected on the exchange, if any, on which the Debt
Securities are traded, in the over-the-counter market or otherwise.
If we so indicate in a prospectus supplement we will authorize underwriters
or our agents to solicit offers by certain institutional investors to purchase
Debt Securities from us which will be paid for and delivered on a future date
specified in the applicable prospectus supplement. The obligations of any
purchasers under these delayed delivery and payment arrangements will not
18
<PAGE> 26
be subject to any conditions except that the purchase at delivery must not be
prohibited under the laws of any jurisdiction in the United States to which the
institution is subject.
LEGAL OPINIONS
Nicholas J. Calise, Esq., who is our Vice President, Associate General
Counsel and Secretary, or another of our lawyers, will issue an opinion about
the validity of the Debt Securities.
As of April 6, 1999, Mr. Calise owned 13,617 shares of our Common Stock;
has deferred receipt of 6,079 shares of our Common Stock under the Long Term
Incentive Plan; has contingently credited to his account 5,918 phantom shares
under the 1998-2000 and 1999-2001 Long Term Incentive Plan, all of which are
subject to forfeiture; held options to purchase 87,100 shares of our Common
Stock; and had credited to his account in our Retirement Plus Savings Plan
approximately 5,855 shares of our Common Stock. In addition, Mr. Calise's wife
owns 1,000 shares, although Mr. Calise disclaims beneficial ownership of these
shares.
Any underwriters will be advised about the validity of the Debt Securities
by their own legal counsel.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements included in our Annual Report on Form 10-K for the year
ended December 31, 1998 as set forth in their report, which as to 1996 is based
in part on the report of Deloitte & Touche LLP, independent auditors, and which
is incorporated by reference in this prospectus and elsewhere in the
registration statement. Our consolidated financial statements are incorporated
by reference in reliance on their reports, given on their authority as experts
in accounting and auditing.
Arthur Andersen LLP, independent auditors, have audited Coltec Industries'
consolidated financial statements and schedules included in its Annual Report on
Form 10-K, for the year ended December 31, 1998, as set forth in their report
which is incorporated in this prospectus by reference. Coltec Industries'
consolidated financial statements are incorporated by reference in reliance on
their report, given on their authority as experts in accounting and auditing.
19
<PAGE> 27
UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL STATEMENTS
The following unaudited pro forma condensed combined statements of income
for each of the three years ended December 31, 1996, 1997 and 1998 give effect
to the merger with Coltec Industries, accounted for as a "pooling of interests."
The unaudited pro forma condensed combined statements of income and the
unaudited pro forma condensed combined balance sheet at December 31, 1998 give
effect to the merger as though Coltec Industries had always been a part of
BFGoodrich.
The pro forma information is based on the historical consolidated financial
statements of BFGoodrich and of Coltec Industries, under the assumptions and
adjustments set forth in the accompanying notes to the unaudited pro forma
condensed combined financial statements.
You should read the information shown below in conjunction with the
consolidated historical financial statements of BFGoodrich and of Coltec
Industries, including the respective notes to those financial statements, which
are incorporated by reference in this prospectus. We have presented the pro
forma data for comparative purposes only. They are not necessarily indicative of
the results of operations or of the financial position that would have occurred
had the merger been completed during the periods or as of the date for which the
pro forma data are presented, and they are not necessarily indicative of
BFGoodrich's future results of operations or financial position.
Pro forma per share amounts for the combined BFGoodrich and Coltec
Industries entity are based on the exchange ratio of 0.56 of a share of
BFGoodrich common stock for each share of Coltec Industries common stock.
F-1
<PAGE> 28
UNAUDITED PRO FORMA CONDENSED COMBINED BALANCE SHEET
DECEMBER 31, 1998
(DOLLARS IN MILLIONS)
The following unaudited pro forma condensed combined balance sheet as of
December 31, 1998 is presented to show the impact of the proposed merger on
BFGoodrich's historical financial condition. The merger has been reflected under
the "pooling of interests" method of accounting.
<TABLE>
<CAPTION>
COLTEC PRO FORMA PRO FORMA
BFGOODRICH INDUSTRIES ADJUSTMENTS COMBINED
---------- ---------- ----------- ---------
<S> <C> <C> <C> <C> <C>
ASSETS
Current Assets
Cash and cash equivalents... $ 31.7 $ 21.8 $ $ 53.5
Accounts and notes
receivable, net.......... 629.0 148.2 777.2
Inventories................. 772.5 236.0 1,008.5
Deferred income taxes....... 142.1 20.5 162.6
Prepaid expenses and other
assets................... 39.2 15.6 54.8
-------- -------- ------- --------
Total current
assets............ 1,614.5 442.1 -- 2,056.6
-------- -------- ------- --------
Property...................... 1,255.9 306.6 -- 1,562.5
Deferred income taxes......... 39.7 -- -- 39.7
Prepaid pensions.............. 148.0 -- 45.3 4(c) 193.3
Goodwill...................... 771.0 214.6 985.6
Identifiable intangible
assets...................... 112.4 -- 112.4
Other assets.................. 251.1 92.3 343.4
-------- -------- ------- --------
$4,192.6 $1,055.6 $ 45.3 $5,293.5
======== ======== ======= ========
</TABLE>
See notes to unaudited pro forma condensed combined financial statements
beginning on page F-7.
F-2
<PAGE> 29
UNAUDITED PRO FORMA CONDENSED COMBINED BALANCE SHEET
DECEMBER 31, 1998
(DOLLARS IN MILLIONS)
(CONTINUED)
<TABLE>
<CAPTION>
COLTEC PRO FORMA PRO FORMA
BFGOODRICH INDUSTRIES ADJUSTMENTS COMBINED
---------- ---------- ----------- ---------
<S> <C> <C> <C> <C> <C>
LIABILITIES AND SHAREHOLDERS'
EQUITY
Current Liabilities
Short-term bank debt........ $ 144.1 $ -- $ $ 144.1
Accounts payable............ 364.4 96.6 461.0
Accrued expenses............ 420.1 171.1 591.2
Income taxes payable........ 59.4 -- 59.4
Current maturities of
long-term debt and
capital lease
obligations.............. 2.8 5.1 7.9
-------- -------- --------
Total current
liabilities....... 990.8 272.8 -- 1,263.6
-------- -------- ------- --------
Long-term debt and capital
lease obligations........... 995.2 577.5 1,572.7
Pension obligations........... 43.6 -- 33.0 4(c) 76.6
Postretirement benefits other
than pensions............... 338.1 5.9 344.0
Other non-current
liabilities................. 101.7 214.5 12.3 4(c) 328.5
Deferred income taxes......... -- 139.9 139.9
Mandatorily redeemable
preferred securities of
trusts...................... 123.6 145.3 268.9
Shareholders' Equity
Common stock................ 381.1 0.7 175.9 4(a) 557.7
Additional capital.......... 543.7 643.6 (303.8) 4(a)(b) 883.5
Income retained in the
business................. 736.8 (795.3) (58.5)
Accumulated other
comprehensive income..... 3.6 (18.7) (15.1)
Common stock held in
treasury, at cost........ (65.6) (127.9) 127.9 4(b) (65.6)
Unearned compensation....... -- (2.7) (2.7)
-------- -------- ------- --------
Total Shareholders'
Equity............ 1,599.6 (300.3) -- 1,299.3
-------- -------- ------- --------
$4,192.6 $1,055.6 $ 45.3 $5,293.5
======== ======== ======= ========
</TABLE>
See notes to unaudited pro forma condensed combined financial statements
beginning on page F-7.
F-3
<PAGE> 30
UNAUDITED PRO FORMA CONDENSED COMBINED STATEMENTS OF INCOME
FOR THE YEAR ENDED DECEMBER 31, 1998
(DOLLARS IN MILLIONS, EXCEPT PER SHARE AMOUNTS)
The following unaudited pro forma condensed combined statements of income
are presented to show the impact of the proposed merger on BFGoodrich's
historical results of operations. These statements assume that the companies had
been combined for each period presented.
<TABLE>
<CAPTION>
COLTEC PRO FORMA PRO FORMA
BFGOODRICH INDUSTRIES ADJUSTMENTS COMBINED
---------- ---------- ----------- ---------
<S> <C> <C> <C> <C>
Sales............................... $3,950.8 $1,504.1 $ -- $5,454.9
Operating costs and expenses:
Cost of sales..................... 2,853.1 1,080.8 3,933.9
Selling and administrative
costs.......................... 610.4 235.2 -- 845.6
Restructuring costs and asset
impairment..................... 10.5 -- -- 10.5
-------- -------- -------- --------
3,474.0 1,316.0 -- 4,790.0
-------- -------- -------- --------
Operating income.................... 476.8 188.1 -- 664.9
Interest expense.................... (79.0) (54.3) -- (133.3)
Interest income..................... 5.2 0.9 -- 6.1
Other income (expense) -- net....... (18.1) 56.2 -- 38.1
-------- -------- -------- --------
Income from continuing operations
before income taxes and trust
distributions..................... 384.9 190.9 -- 575.8
Income tax expense.................. (146.3) (64.9) -- (211.2)
Distributions on trust preferred
securities........................ (10.5) (3.7) -- (14.2)
-------- -------- -------- --------
Income from continuing operations... 228.1 122.3 -- 350.4
Income (loss) from discontinued
operations -- net of taxes........ (1.6) -- -- (1.6)
-------- -------- -------- --------
Income before extraordinary item.... 226.5 122.3 -- 348.8
Extraordinary item -- net of tax.... -- (4.3) -- (4.3)
-------- -------- -------- --------
Net income.......................... $ 226.5 $ 118.0 $ -- $ 344.5
======== ======== ======== ========
Basic earnings per share:
Continuing operations............. $ 3.09 $ 1.88 $ -- $ 3.18
Discontinued operations........... (0.02) -- -- (0.01)
Extraordinary item................ -- (0.07) -- (0.04)
-------- -------- -------- --------
Net income........................ $ 3.07 $ 1.81 $ -- $ 3.13
======== ======== ======== ========
Diluted earnings per share:
Continuing operations............. $ 3.04 $ 1.81 $ -- $ 3.08
Discontinued operations........... (0.02) -- -- (0.01)
Extraordinary item................ -- (0.06) -- (0.04)
-------- -------- -------- --------
Net income........................ $ 3.02 $ 1.75 $ -- $ 3.03
======== ======== ======== ========
Weighted average number of common
and common equivalent shares
outstanding -- in millions
Basic.......................... 73.7 65.1 -- 110.2
Diluted........................ 75.0 69.4 -- 113.9
</TABLE>
See notes to unaudited pro forma condensed combined financial statements
beginning on page F-7.
F-4
<PAGE> 31
UNAUDITED PRO FORMA CONDENSED COMBINED STATEMENTS OF INCOME
FOR THE YEAR ENDED DECEMBER 31, 1997
(DOLLARS IN MILLIONS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
COLTEC PRO FORMA PRO FORMA
BFGOODRICH INDUSTRIES ADJUSTMENTS COMBINED
---------- ---------- ----------- ---------
<S> <C> <C> <C> <C>
Sales............................... $3,373.0 $1,314.9 $ -- $4,687.9
Operating costs and expenses:
Cost of sales..................... 2,454.7 898.3 -- 3,353.0
Charge for MD-90 contract......... 35.2 -- -- 35.2
Selling and administrative
costs.......................... 556.0 218.8 -- 774.8
Merger-related costs.............. 77.0 -- -- 77.0
-------- -------- -------- --------
3,122.9 1,117.1 -- 4,240.0
-------- -------- -------- --------
Operating income.................... 250.1 197.8 -- 447.9
Interest expense.................... (73.0) (54.6) -- (127.6)
Interest income..................... 12.0 .6 -- 12.6
Gain on issuance of subsidiary
stock............................. 13.7 -- -- 13.7
Other income (expense) -- net....... 15.0 -- -- 15.0
-------- -------- -------- --------
Income from continuing operations
before income taxes and trust
distributions..................... 217.8 143.8 -- 361.6
Income tax expense.................. (94.1) (48.9) -- (143.0)
Distributions on trust preferred
securities........................ (10.5) -- -- (10.5)
-------- -------- -------- --------
Income from continuing operations... 113.2 94.9 -- 208.1
Income from discontinued
operations -- net of taxes........ 84.3 -- -- 84.3
-------- -------- -------- --------
Income before extraordinary item.... 197.5 94.9 -- 292.4
Extraordinary item -- net of tax.... (19.3) -- -- (19.3)
-------- -------- -------- --------
Net income.......................... $ 178.2 $ 94.9 $ -- $ 273.1
======== ======== ======== ========
Basic earnings per share:
Continuing operations............. $ 1.59 $ 1.44 $ -- $ 1.93
Discontinued operations........... 1.19 -- -- 0.78
Extraordinary item................ (0.27) -- -- (0.18)
-------- -------- -------- --------
Net income........................ $ 2.51 $ 1.44 $ -- $ 2.53
======== ======== ======== ========
Diluted earnings per share:
Continuing operations............. $ 1.53 $ 1.42 $ -- $ 1.86
Discontinued operations........... 1.13 -- -- 0.75
Extraordinary item................ (0.25) $ -- -- (0.17)
-------- -------- -------- --------
Net income........................ $ 2.41 $ 1.42 $ -- $ 2.44
======== ======== ======== ========
Weighted average number of common
and common equivalent shares
outstanding -- in millions
Basic.......................... 71.0 65.9 -- 107.9
Diluted........................ 74.6 66.9 -- 112.1
</TABLE>
See notes to unaudited pro forma condensed combined financial statements
beginning on page F-7.
F-5
<PAGE> 32
UNAUDITED PRO FORMA CONDENSED COMBINED STATEMENTS OF INCOME
FOR THE YEAR ENDED DECEMBER 31, 1996
(DOLLARS IN MILLIONS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
COLTEC PRO FORMA PRO FORMA
BFGOODRICH INDUSTRIES ADJUSTMENTS COMBINED
---------- ---------- ----------- ---------
<S> <C> <C> <C> <C>
Sales............................... $2,845.8 $1,159.7 $ -- $4,005.5
Operating costs and expenses:
Cost of sales..................... 2,042.5 811.1 -- 2,853.6
Selling and administrative
costs.......................... 481.8 191.0 -- 672.8
Restructuring costs and asset
impairment..................... 11.2 -- -- 11.2
-------- -------- -------- --------
2,535.5 1,002.1 -- 3,537.6
-------- -------- -------- --------
Operating income.................... 310.3 157.6 -- 467.9
Interest expense.................... (89.3) (76.2) -- (165.5)
Interest income..................... 4.2 1.3 -- 5.5
Other income (expense) -- net....... (30.8) -- -- (30.8)
-------- -------- -------- --------
Income from continuing operations
before income taxes and trust
distributions..................... 194.4 82.7 -- 277.1
Income tax expense.................. (68.4) (28.1) -- (96.5)
Distributions on trust preferred
securities........................ (10.5) -- -- (10.5)
-------- -------- -------- --------
Income from continuing operations... 115.5 54.6 -- 170.1
Income from discontinued
operations -- net of taxes........ 58.4 57.1 -- 115.5
-------- -------- -------- --------
Income before extraordinary item.... 173.9 111.7 -- 285.6
Extraordinary item -- net of tax.... -- (30.6) -- (30.6)
-------- -------- -------- --------
Net income.......................... $ 173.9 $ 81.1 $ -- $ 255.0
======== ======== ======== ========
Basic earnings per share:
Continuing operations............. $ 1.74 $ 0.79 $ -- $ 1.62
Discontinued operations........... 0.87 0.83 -- 1.09
Extraordinary item................ -- (0.44) -- (0.29)
-------- -------- -------- --------
Net income........................ $ 2.61 $ 1.18 $ -- $ 2.42
======== ======== ======== ========
Diluted earnings per share:
Continuing operations............. $ 1.65 $ 0.79 $ -- $ 1.57
Discontinued operations........... 0.83 0.82 -- 1.05
Extraordinary item................ -- (0.44) -- (0.28)
-------- -------- -------- --------
Net income........................ $ 2.48 $ 1.17 $ -- $ 2.34
======== ======== ======== ========
Weighted average number of common
and common equivalent shares
outstanding -- in millions
Basic.......................... 66.6 69.1 -- 105.3
Diluted........................ 70.9 69.4 -- 109.8
</TABLE>
See notes to unaudited pro forma condensed combined financial statements
beginning on page F-7.
F-6
<PAGE> 33
NOTES TO UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL STATEMENTS
1. BASIS OF PRESENTATION
The unaudited pro forma condensed combined statements of income for each of
the three years in the period ended December 31, 1998 and the unaudited pro
forma condensed combined balance sheet at December 31, 1998 give effect to the
merger as though Coltec Industries had always been a part of BFGoodrich.
We have presented the unaudited pro forma condensed combined financial
statements for comparative purposes only. They are not necessarily indicative of
the results of operations or of the financial position that would have occurred
had the merger been completed during the periods or as of the date for which the
pro forma data are presented. They are also not necessarily indicative of
BFGoodrich's future results of operations or financial position.
We have included certain reclassifications in the unaudited pro forma
condensed combined balance sheet and statements of income to conform statement
presentations to those expected to be used by BFGoodrich after the merger.
2. CONFORMITY OF ACCOUNTING POLICIES
We are still in the process of reviewing our respective accounting policies
to determine if they are consistent or if they need to be conformed. As a result
of this review, we might need to restate either Coltec Industries' or
BFGoodrich's financial statements to conform to those accounting policies that
are most appropriate. We have not included any restatements of prior periods in
the unaudited pro forma condensed combined financial statements. At this time,
we do not expect that conforming such accounting policies will have a material
impact on the unaudited pro forma condensed combined financial statements. We
will make any restatements, if appropriate, upon completion of this review
process.
3. MERGER-RELATED AND CONSOLIDATION EXPENSES
The unaudited pro forma condensed combined financial statements do not
include any merger-related and consolidation expenses which we expect to incur
in connection with completing the merger and integrating the operations of
BFGoodrich and Coltec Industries. It is not possible to determine the actual
amount of these costs and expenses until the related operational and
transitional plans are complete. These costs and expenses relate to professional
and registration fees; employee benefit-related costs such as severance,
relocation and retention incentives; facility consolidations; and satisfaction
of contractual obligations. Most of these costs and expenses will be incurred to
eliminate duplicate facilities and excess capacity in the combined BFGoodrich
operations. We cannot determine the exact timing of these charges at this time.
They are dependent on the completion of the necessary plans.
In connection with the merger, the managements of BFGoodrich and Coltec
Industries estimate that BFGoodrich will incur a one-time charge for
merger-related and consolidation expenses at the effective date of the merger
that is expected to be material. Other merger-related transaction costs include
investment banking fees, registration and listing fees, and various accounting,
legal and other related costs.
4. PRO FORMA ADJUSTMENTS
Pro forma adjustments to reflect the effect of the merger on the unaudited
pro forma condensed combined balance sheet at December 31, 1998 are as follows:
F-7
<PAGE> 34
a. Common stock increased by $175.9 million to record the BFGoodrich
common stock issued in the merger. That increase is calculated by
multiplying the 63.1 million shares of Coltec Industries common stock
outstanding by the exchange ratio of 0.56 and the par value of
BFGoodrich common stock of $5 per share, reduced by $0.7 million to
record the retirement of Coltec Industries common stock.
b. Combined additional capital is adjusted for the effects of pro forma
adjustment a. above, and for the retirement of Coltec Industries
treasury shares.
c. Coltec Industries' pension obligations are reclassified in accordance
with BFGoodrich's presentation.
d. For purposes of the pro forma information and references to the
shares to be issued by BFGoodrich in the merger, we have not included
the 14,000,000 shares of BFGoodrich common stock to be issued in the
merger in exchange for the 25,000,000 shares of Coltec Industries
common stock currently owned by a subsidiary of Coltec Industries.
F-8
<PAGE> 35
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION*
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee........ $ 0
Printing and engraving expenses............................ 50,000
Rating agency fees......................................... 165,000
Trustee's fees............................................. 5,000
Legal fees................................................. 25,000
Accounting expenses........................................ 10,000
Blue Sky fees and expenses................................. 10,000
Other...................................................... 20,000
--------
Total.................................................... $285,000
========
</TABLE>
- ---------------
* All amounts other than the registration fee are estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under the Company's Restated Certificate of Incorporation no member of the
Board of Directors shall have any personal liability to the Company or its
shareholders for damages for any breach of duty in such capacity, provided that
such liability shall not be limited if a judgment or other final adjudication
adverse to the Director establishes that his or her acts or omissions were in
bad faith or involved intentional misconduct or a knowing violation of law or
that the Director personally gained in fact a financial profit or other
advantage to which he or she was not legally entitled or that the Director's
acts violated section 719 of the New York Business Corporation Law ("B.C.L.")
(generally relating to the improper declaration of dividends, improper purchases
of shares, improper distribution of assets after dissolution, or making improper
loans to directors contrary to specified statutory provisions). Reference is
made to Article TWELFTH of the Company's Restated Certificate of Incorporation
filed as Exhibit 3(a) to the Company's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1988.
Under the Company's By-Laws, any person made, or threatened to be made, a
party to an action or proceeding by reason of the fact that he, his testator or
intestate is or was a director or officer of the Company or served any other
corporation in any capacity at the request of the Company shall be indemnified
by the Company to the extent and in a manner permissible under the laws of the
State of New York.
In addition, the Company's By-Laws provide indemnification for directors
and officers where they are acting on behalf of the Company where the final
judgment does not establish that the director or officer acted in bad faith or
was deliberately dishonest or gained a financial profit or other advantage to
which he was not legally entitled. The By-Laws provide that the indemnification
rights shall be deemed to be "contract rights" and continue after a person
ceases to be a director or officer or after rescission or modification of the
By-Laws with respect to prior occurring events. They also provide directors and
officers with the benefit of any additional indemnification which may be
permitted by later amendment to the B.C.L. The By-Laws further provide for
advancement of expenses and specify procedures in seeking and
II-1
<PAGE> 36
obtaining indemnification. Reference is made to Article VI of the Company's
By-Laws filed as Exhibit 3(b) to the Company's Quarterly Report on Form 10-Q for
the quarter ended September 30, 1988.
The Company has insurance to indemnify its directors and officers, within
the limits of the Company's insurance policies, for those liabilities in respect
of which such indemnification insurance is permitted under the laws of the State
of New York.
Reference is made to Sections 721-726 of the B.C.L., which are summarized
below.
Section 721 of the B.C.L. provides that indemnification pursuant to the
B.C.L. shall not be deemed exclusive of other indemnification rights to which a
director or officer may be entitled, provided that no indemnification may be
made if a judgment or other final adjudication adverse to the director or
officer establishes that (i) his acts were committed in bad faith or were the
result of active and deliberate dishonesty, and, in either case, were material
to the cause of action so adjudicated, or (ii) he personally gained in fact a
financial profit or other advantage to which he was not legally entitled.
Section 722(a) of the B.C.L. provides that a corporation may indemnify a
director or officer made, or threatened to be made, a party to any civil or
criminal action, other than a derivative action, against judgments, fines,
amounts paid in settlement and reasonable expenses, including attorneys' fees
actually and necessarily incurred as a result of such action or proceeding, or
any appeal therein, if such director or officer acted, in good faith, for a
purpose which he reasonably believed to be in the best interests of the
corporation and, in criminal actions or proceedings, in addition, had no
reasonable cause to believe that his conduct was unlawful. With respect to
derivative actions, Section 722(c) of the B.C.L. provides that a director or
officer may be indemnified only against amounts paid in settlement and
reasonable expenses, including attorneys' fees, actually and necessarily
incurred in connection with the defense or settlement of such action, or any
appeal therein, if such director or officer acted, in good faith, for a purpose
which he reasonably believed to be in the best interests of the corporation and
that no indemnification shall be made in respect of (1) a threatened action, or
a pending action which is settled or otherwise disposed of, or (2) any claim,
issue or matter as to which such person shall have been adjudged to be liable to
the corporation, unless and to the extent an appropriate court determines that
the person is fairly and reasonably entitled to partial or full indemnification.
Section 723 of the B.C.L. specifies the manner in which payment of such
indemnification may be authorized by the corporation. It provides that
indemnification by a corporation is mandatory in any case in which the director
or officer has been successful, whether on the merits or otherwise, in defending
an action. In the event that the director or officer has not been successful or
the action is settled, indemnification may be made by the corporation only if
authorized by any of the corporate actions set forth in such Section 723 (unless
the corporation has provided for indemnification in some other manner as
otherwise permitted by Section 721 of the B.C.L.).
Section 724 of the B.C.L. provides that upon proper application by a
director or officer, indemnification shall be awarded by a court to the extent
authorized under Sections 722 and 723 of the B.C.L. Section 725 of the B.C.L.
contains certain other miscellaneous provisions affecting the indemnification of
directors and officers, including provision for the return of amounts paid as
indemnification if any such person is ultimately found not to be entitled
thereto.
Section 726 of the B.C.L. authorizes the purchase and maintenance of
insurance to indemnify (1) a corporation for any obligation which it incurs as a
result of the indemnification of directors and officers under the above
sections, (2) directors and officers in instances in which they may be
indemnified by a corporation under such sections, and (3) directors and officers
in
II-2
<PAGE> 37
instances in which they may not otherwise be indemnified by a corporation under
such sections, provided the contract of insurance covering such directors and
officers provides, in a manner acceptable to the New York State Superintendent
of Insurance, for a retention amount and for co-insurance.
ITEM 16. EXHIBITS
<TABLE>
<C> <S>
1.a Form of Underwriting Agreement
1.b* Form of Distribution Agreement
4.a Indenture dated as of May 1, 1991 between the Company and
the Trustee. This exhibit was filed as an exhibit to the
Registrant's Registration Statement on Form S-3 (File No.
33-65658) and is incorporated herein by reference
4.b Form of Fixed Rate Note. This exhibit was filed as an
exhibit to the Registrant's Registration Statement on Form
S-3 (File No. 333-03341) and is incorporated herein by
reference
4.c Form of Floating Rate Note. This exhibit was filed as an
exhibit to the Registrant's Registration Statement on Form
S-3 (File No. 333-03341) and is incorporated herein by
reference
5. Opinion re validity of Debt Securities of Nicholas J.
Calise, Esq., Vice President, Associate General Counsel and
Secretary (including consent)
12. Computation of Ratio of Earnings to Fixed Charges
23.a Consent of Ernst & Young LLP, independent auditors
23.b Consent of Deloitte & Touche LLP, independent auditors
23.c Consent of Arthur Andersen LLP, independent auditors
23.d Consent of Nicholas J. Calise, Esq. (contained in his
opinion filed as Exhibit 5)
24.a Power of Attorney
24.b Power of Attorney
25. Form T-1 Statement of Eligibility and Qualification of the
Trustee
</TABLE>
- ---------------
* To be filed by amendment or on Form 8-K.
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a posteffective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
II-3
<PAGE> 38
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed with or furnished to the Commission
by the Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that
is incorporated by reference in the registration statement shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(5) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described under Item 15 above, or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of an action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-4
<PAGE> 39
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Village of Richfield, State of Ohio, on April 28, 1999.
THE B.F.GOODRICH COMPANY
By: /s/ N. J. CALISE
-----------------------------------
Nicholas J. Calise
Vice President, Associate
General Counsel and Secretary
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed on April 28, 1999 by the following
persons in the capacities indicated.
<TABLE>
<S> <C>
/s/ DAVID L. BURNER /s/ L. A. CHAPMAN
----------------------------------- -------------------------------------
(David L. Burner) (Laurence A. Chapman)
Chairman of the Board, Chief Senior Vice President and
Executive Officer and Director Chief Financial Officer
(Principal Executive Officer) (Principal Financial Officer)
/s/ ROBERT D. KONEY, JR. /s/ DIANE C. CREEL
----------------------------------- -------------------------------------
(Robert D. Koney, Jr.) (Diane C. Creel)
Vice President and Controller Director
(Principal Accounting Officer)
/s/ GEORGE A. DAVIDSON, JR. /s/ JAMES J. GLASSER
----------------------------------- -------------------------------------
(George A. Davidson, Jr.) (James J. Glasser)
Director Director
/s/ JODIE K. GLORE /s/ DOUGLAS E. OLESEN
----------------------------------- -------------------------------------
(Jodie K. Glore) (Douglas E. Olesen)
Director Director
/s/ RICHARD DE J. OSBORNE /s/ ALFRED M. RANKIN, JR.
----------------------------------- -------------------------------------
(Richard de J. Osborne) (Alfred M. Rankin, Jr.)
Director Director
</TABLE>
II-5
<PAGE> 40
<TABLE>
<S> <C>
/s/ ROBERT H. RAU /s/ JAMES R. WILSON
----------------------------------- -------------------------------------
(Robert H. Rau) (James R. Wilson)
Director Director
/s/ A. THOMAS YOUNG
-----------------------------------
(A. Thomas Young)
Director
</TABLE>
*The undersigned, as attorney-in-fact does hereby sign this Registration
Statement on behalf of each of the officers and directors indicated above.
/s/ N. J. Calise
- --------------------------------------
Nicholas J. Calise
II-6
<PAGE> 41
EXHIBIT INDEX
<TABLE>
<CAPTION>
PAGINATION BY
EXHIBIT SEQUENTIAL NUMBER
NUMBER EXHIBIT DESCRIPTION SYSTEM
- ------- ------------------- -----------------
<C> <S> <C>
1.a Form of Underwriting Agreement
1.b* Form of Distribution Agreement
4.a Indenture dated as of May 1, 1991 between the Company
and the Trustee. This exhibit was filed as an exhibit
to the Registrant's Registration Statement on Form S-3
(File No. 33-65658) and is incorporated herein by
reference
4.b Form of Fixed Rate Note. This exhibit was filed as an
exhibit to the Registrant's Registration Statement on
Form S-3 (File No. 333-03341) and is incorporated
herein by reference
4.c Form of Floating Rate Note. This exhibit was filed as
an exhibit to the Registrant's Registration Statement
on Form S-3 (File No. 333-03341) and is incorporated
herein by reference
5. Opinion re validity of Debt Securities of Nicholas J.
Calise, Esq., Vice President, Associate General
Counsel and Secretary (including consent)
12. Computation of Ratio of Earnings to Fixed Charges
23.a Consent of Ernst & Young LLP, independent auditors
23.b Consent of Deloitte & Touche LLP, independent auditors
23.c Consent of Arthur Andersen LLP, independent auditors.
23.d Consent of Nicholas J. Calise, Esq. (contained in his
opinion filed as Exhibit 5)
24.a Power of Attorney
24.b Power of Attorney
25. Form T-1 Statement of Eligibility and Qualification of
the Trustee
</TABLE>
- ---------------
* To be filed by amendment or on Form 8-K.
<PAGE> 1
EXHIBIT 1.a
THE B.F.GOODRICH COMPANY
Debt Securities
Underwriting Agreement
. . . . . . . ., . . . . [date]
[ADDRESS]
Dear Sirs:
From time to time The B.F.Goodrich Company, a New York
corporation (the "Company"), proposes to enter into one or more Pricing
Agreements (each, a "Pricing Agreement") in the form of Annex I hereto, with
such additions and deletions as the parties thereto may determine, and, subject
to the terms and conditions stated herein and therein, to issue and sell to the
firms named in Schedule I to the applicable Pricing Agreement (such firms
constituting the "Underwriters" with respect to such Pricing Agreement and the
securities specified therein) certain of its debt securities (the "Securities")
specified in Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, the "Designated Securities").
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the indenture (the "Indenture") identified in such Pricing
Agreement.
1. Particular sales of Designated Securities may be made from
time to time to the Underwriters of such Securities, for whom the firms
designated as representatives of the Underwriters of such Securities in the
Pricing Agreement relating thereto will act as representatives (the
"Representatives"). The term "Representatives" also refers to a single firm
acting as sole representative of the Underwriters and to Underwriters who act
without any firm being designated as their representative. This Underwriting
Agreement shall not be construed as an obligation of the Company to sell any of
the Securities or as an obligation of any of the Underwriters to purchase the
Securities. The obligation of the Company to issue and sell any of the
Securities and the obligation of any of the Underwriters to purchase any of the
Securities shall be evidenced by the Pricing Agreement with respect to the
Designated Securities specified therein. Each Pricing Agreement shall specify
the aggregate principal amount of such Designated Securities, the
<PAGE> 2
initial public offering price of such Designated Securities, the purchase price
to the Underwriters of such Designated Securities, the names of the Underwriters
of such Designated Securities, the names of the Representatives of such
Underwriters and the principal amount of such Designated Securities to be
purchased by each Underwriter and shall set forth the date, time and manner of
delivery of such Designated Securities and payment therefor. The Pricing
Agreement shall also specify (to the extent not set forth in the Indenture and
the registration statement and prospectus with respect thereto) the terms of
such Designated Securities. A Pricing Agreement shall be in the form of an
executed writing (which may be in counterparts), and may be evidenced by an
exchange of telegraphic communications or any other rapid transmission device
designed to produce a written record of communications transmitted. The
obligations of the Underwriters under this Agreement and each Pricing Agreement
shall be several and not joint.
2. The Company represents and warrants to, and agrees with,
each of the Underwriters that:
(a) A registration statement in respect of the Securities has
been filed with the Securities and Exchange Commission (the
"Commission"); such registration statement and any post-effective
amendment thereto, each in the form heretofore delivered or to be
delivered to the Representatives and, excluding exhibits to such
registration statement but including all documents incorporated by
reference in the prospectus contained therein, to the Representatives
for each of the other Underwriters, have been declared effective by the
Commission in such form; no other document with respect to such
registration statement or document incorporated by reference therein
has heretofore been filed or transmitted for filing with the
Commission; and no stop order suspending the effectiveness of such
registration statement has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission (any
preliminary prospectus included in such registration statements or
filed with the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the Securities Act of 1933, as
amended (the "Act"), being hereinafter called a "Preliminary
Prospectus"; the various parts of such registration statements,
including all exhibits thereto and the documents incorporated by
reference in the prospectus contained in the registration statements at
the time such part of the registration statements became effective but
excluding Form T-1, each as amended at the time such part of the
registration statements became effective, being hereinafter
collectively called the "Registration Statement"; the prospectus
relating to the Securities, in the form in which it has most recently
been filed, or transmitted for filing, with the Commission on or prior
to the date of this Agreement, being hereinafter called the
"Prospectus"; any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to the applicable form under
the Act, as of the date of such Preliminary Prospectus or Prospectus,
as the case may be; any reference to any
2
<PAGE> 3
amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the
date of such Preliminary Prospectus or Prospectus, as the case may be,
under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and incorporated by reference in such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any
annual report of the Company filed pursuant to Section 13(a) or 15(d)
of the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration
Statement; and any reference to the Prospectus as amended or
supplemented shall be deemed to refer to the Prospectus as amended or
supplemented in relation to the applicable Designated Securities in the
form in which it is filed with the Commission pursuant to Rule 424(b)
under the Act in accordance with Section 5(a) hereof, including any
documents incorporated by reference therein as of the date of such
filing);
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so filed
and incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become effective
or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter of
Designated Securities through the Representatives expressly for use in
the Prospectus as amended or supplemented relating to such Securities;
(c) The Registration Statement and the Prospectus conform, and
any further amendments or supplements to the Registration Statement or
the Prospectus will conform, in all material respects to the
requirements of the Act and the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act") and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment
thereto and as of the applicable filing date as to the Prospectus and
any amendment or supplement thereto, contain an untrue statement of a
material fact or omit to
3
<PAGE> 4
state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that
this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter of Designated
Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities;
(d) The Company and its subsidiaries considered as a whole
have not, since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus, sustained any
material loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus; and,
since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any
change in the capital stock or long-term debt of the Company and its
subsidiaries considered as a whole or any material adverse change, or
any development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries considered as a whole, otherwise than as set forth or
contemplated in the Prospectus;
(e) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of New York and has been duly qualified as a foreign corporation for
the transaction of business and is in good standing under the laws of
each other jurisdiction in which it owns or leases properties, or
conducts any business in an amount that is material to the business of
the Company and its consolidated subsidiaries considered as a whole so
as to require such qualification; each Material Subsidiary (as defined
below) of the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and is duly qualified as a foreign
corporation for the transaction of business and in good standing under
the laws of each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such
qualification (as used in this agreement, the term "Material
Subsidiary" means a subsidiary of the Company which is a significant
subsidiary under Rule 1-02 of Regulation S-X of the Commission);
(f) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully
paid and non-assessable;
(g) The Securities have been duly authorized, and, when
Designated
4
<PAGE> 5
Securities are issued and delivered pursuant to this
Agreement and the Pricing Agreement with respect to such Designated
Securities, such Designated Securities will have been duly executed,
authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company entitled to the benefits
provided by the Indenture, which will be substantially in the form
filed as an exhibit to the Registration Statement; the Indenture has
been duly authorized and duly qualified under the Trust Indenture Act
and, at the Time of Delivery for such Designated Securities (as defined
in Section 4 hereof), the Indenture will constitute a valid and legally
binding instrument, enforceable in accordance with its terms, subject,
as to enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and the Indenture conforms,
and the Designated Securities will conform, in all material respects,
to the descriptions thereof contained in the Prospectus as amended or
supplemented with respect to such Designated Securities;
(h) The issue and sale of the Securities, and the compliance
by the Company with all of the provisions of the Securities, the
Indenture, this Agreement and any Pricing Agreement, and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its Material Subsidiaries is
a party or by which the Company or any of its Material Subsidiaries is
bound or to which any of the property or assets of the Company or any
of its Material Subsidiaries is subject, nor will such action result in
any violation of the provisions of the Company's Certificate of
Incorporation or By-laws or any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its Material Subsidiaries or
any of their properties; and no consent, approval, authorization,
order, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the
Securities or the consummation by the Company of the transactions
contemplated by this Agreement or any Pricing Agreement or the
Indenture, except such as have been, or will have been prior to the
Time of Delivery, obtained under the Act and the Trust Indenture Act
and such consents, approvals, authorizations, registrations or
qualifications as may be required under the state securities or Blue
Sky laws in connection with the purchase and distribution of the
Securities by the Underwriters;
(i) Neither the Company nor any of its Material Subsidiaries
is in violation of its Certificate of Incorporation or By-Laws or in
default in the performance or observance of any material obligation,
covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, material lease or other material
5
<PAGE> 6
agreement or instrument to which it is a party or by which it or any
of its properties may be bound;
(j) The statements set forth in the Prospectus under the
captions "Description of Debt Securities" and "Description of the
Offered Securities", insofar as they purport to constitute a summary of
the terms of the Securities, and under the captions "Plan of
Distribution" and "Underwriting", insofar as they purport to describe
the provisions of the laws and documents referred to therein, are
accurate, complete and fair, and, if the Prospectus includes a caption
"United States Tax Considerations", the statements set forth in the
Prospectus under such caption, insofar as they purport to constitute a
summary of the laws referred to therein, are both accurate and complete
in all material respects;
(k) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property of the Company
or any of its subsidiaries is the subject, other than litigation which,
in the opinion of the Company, will not individually or in the
aggregate have a material adverse effect on the current or future
consolidated financial position, shareholders' equity or results of
operations of the Company and its subsidiaries considered as a whole;
and, to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others;
(l) The Company is not and, after giving effect to each
offering and sale of the Securities, will not be an "investment
company" or an entity "controlled" by an "investment company", as such
terms are defined in the Investment Company Act of 1940, as amended
(the "Investment Company Act");
(m) Neither the Company nor any of its affiliates does
business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075, Florida
Statutes;
(n) Immediately after any sale of Designated Securities by the
Company under any Pricing Agreement, the aggregate amount of Securities
which shall have been issued and sold by the Company under any Pricing
Agreement and of any debt securities of the Company (other than such
Securities) that shall have been issued and sold pursuant to the
Registration Statement will not exceed the amount of debt securities
registered under the Registration Statement; and
(o) Ernst & Young LLP, who have certified certain financial
statements of the Company and its subsidiaries, are, to the best
knowledge of the Company, independent public accountants as required by
the Act and the rules and regulations of the Commission thereunder.
6
<PAGE> 7
3. Upon the execution of the Pricing Agreement applicable to
any Designated Securities and authorization by the Representatives of the
release of such Designated Securities, the several Underwriters propose to offer
such Designated Securities for sale upon the terms and conditions set forth in
the Prospectus as amended or supplemented.
4. Designated Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in the form specified in
such Pricing Agreement, and in such authorized denominations and registered in
such names as the Representatives may request upon at least forty-eight hours'
prior notice to the Company, shall be delivered by or on behalf of the Company
to the Representatives for the account of such Underwriter, against payment by
such Underwriter or on its behalf of the purchase price therefor by wire
transfer or certified or official bank check or checks, payable to the order of
the Company in the funds specified in such Pricing Agreement, all at the place
and time and date specified in such Pricing Agreement or at such other place and
time and date as the Representatives and the Company may agree upon in writing,
such time and date being herein called the "Time of Delivery" for such
Securities.
5. The Company agrees with each of the Underwriters of any
Designated Securities:
(a) To prepare the Prospectus as amended and supplemented in
relation to the applicable Designated Securities in a form approved by
the Representatives and to file such Prospectus pursuant to Rule 424(b)
under the Act not later than the Commission's close of business on the
second business day following the execution and delivery of the Pricing
Agreement relating to the applicable Designated Securities or, if
applicable, such earlier time as may be required by Rule 424(b); to
make no further amendment or any supplement to the Registration
Statement or Prospectus as amended or supplemented after the date of
the Pricing Agreement relating to such Securities and prior to the Time
of Delivery for such Securities which shall be disapproved by the
Representatives for such Securities promptly after reasonable notice
thereof; to advise the Representatives promptly of any such amendment
or supplement after such Time of Delivery and furnish the
Representatives with copies thereof; to file promptly all reports and
any definitive proxy or information statements required to be filed by
the Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") for so long as the delivery of a prospectus is required in
connection with the offering or sale of such Securities, and during
such same period to advise the Representatives, promptly after it
receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed
with the Commission, of
7
<PAGE> 8
the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any
prospectus relating to the Securities, of the suspension of the
qualification of such Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending
or supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any such
stop order or of any such order preventing or suspending the use of any
prospectus relating to the Securities or suspending any such
qualification, to use promptly its best efforts to obtain its
withdrawal;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such jurisdictions as
the Representatives may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of such Securities, provided that in connection therewith
the Company shall not be required to qualify as a foreign corporation
or to file a general consent to service of process in any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus
as amended or supplemented in such quantities as the Representatives
may from time to time reasonably request, and, if the delivery of a
prospectus is required at any time in connection with the offering or
sale of any Designated Securities and if at such time any event shall
have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if for
any other reason it shall be necessary during such same period to amend
or supplement the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in order to comply
with the Act, the Exchange Act or the Trust Indenture Act, to notify
the Representatives and upon their request to file such document and to
prepare and furnish without charge to each Underwriter and to any
dealer in securities as many copies as the Representatives may from
time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or
omission or effect such compliance;
(d) To make generally available to its securityholders as soon
as practicable, but in any event not later than eighteen months after
the effective date of the Registration Statement (as defined in Rule
158(c) under the Act), an earning statement of the Company and its
consolidated subsidiaries (which need not be audited) complying with
Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including at the option of the Company Rule 158
8
<PAGE> 9
under the Act); and
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and
including the earlier of (i) the termination of trading restrictions
for such Designated Securities, as notified to the Company by the
Representatives and (ii) the Time of Delivery for such Designated
Securities, not to offer, sell, contract to sell or otherwise dispose
of any debt securities of the Company which mature more than one year
after such Time of Delivery and which are substantially similar to such
Designated Securities, without the prior written consent of the
Representatives.
6. The Company covenants and agrees with the several
Underwriters that the Company will pay or cause to be paid the following: (i)
the fees, disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, any Pricing Agreement, any
indenture, any Blue Sky and Legal Investment memoranda, closing documents
(including any compilations thereof) and any other documents in connection with
the offering, purchase, sale and delivery of the Securities; (iii) all expenses
in connection with the qualification of the Securities for offering and sale
under state securities laws as provided in Section 5(b) hereof, including the
reasonable fees and disbursements of counsel for the Underwriters in connection
with such qualification and in connection with the Blue Sky and legal investment
surveys; (iv) any fees charged by securities rating services for rating the
Securities; (v) any filing fees incident to any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the
Securities; (vi) the cost of preparing the Securities; (vii) the fees and
expenses of any Trustee and any agent of any Trustee and the fees and
disbursements of counsel for any Trustee in connection with any Indenture and
the Securities; and (viii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that, except as
provided in this Section, Section 8 and Section 11 hereof, the Underwriters will
pay all of their own costs and expenses, including the fees of their counsel,
transfer taxes on resale of any of the Securities by them, and any advertising
expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated
Securities under the Pricing Agreement relating to such Designated Securities
shall be subject, in the discretion of the Representatives, to the condition
that all representations and warranties and other statements of the Company in
or incorporated by reference in the Pricing Agreement relating to such
Designated Securities are, at and as of the Time of Delivery for such Designated
Securities, true and correct, the condition that the Company shall
9
<PAGE> 10
have performed all of its obligations hereunder theretofore to be performed, and
the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to
the applicable Designated Securities shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the Act
and in accordance with Section 5(a) hereof; no stop order suspending
the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to the Representatives' reasonable satisfaction;
(b) Sullivan & Cromwell, counsel for the Underwriters, shall
have furnished to the Representatives such opinion or opinions, dated
the Time of Delivery for such Designated Securities, with respect to
the incorporation of the Company, the validity of the Indenture, the
Designated Securities, the Registration Statement, the Prospectus as
amended or supplemented and other related matters as the
Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(c) Nicholas J. Calise, Vice President, Associate General
Counsel and Secretary of the Company, shall have furnished to the
Representatives his written opinion, dated the Time of Delivery for
such Designated Securities, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of New York, with corporate power and
authority to own its properties and conduct its business as
described in the Prospectus as amended or supplemented;
(ii) The Company has an authorized capitalization as
set forth in the Prospectus as amended or supplemented and all
of the issued shares of capital stock of the Company have been
duly and validly authorized and issued and are fully paid and
non-assessable;
(iii) The Company has been duly qualified as a
foreign corporation for the transaction of business and is in
good standing under the laws of each jurisdiction in the
United States other than New York in which it owns or leases
plants or other major real property (such counsel being
entitled to rely in respect of the opinion in this clause upon
opinions of local counsel and in respect of matters of fact
upon certificates of officers
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<PAGE> 11
of the Company, provided that such counsel shall state that he
believes that both you and he are justified in relying on such
opinions and certificates);
(iv) Each Material Subsidiary of the Company has been
duly incorporated and is validly existing as a corporation in
good standing under the laws of its jurisdiction of
incorporation; all of the issued shares of capital stock of
each such Material Subsidiary have been duly and validly
authorized and issued, are fully paid and non-assessable, and
(except for directors' qualifying shares) are owned directly
or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims;
(v) To the best of such counsel's knowledge, there
are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any
property of the Company or any of its subsidiaries is the
subject, other than as set forth in the Prospectus and other
than litigation which in the aggregate is not material to the
Company and its subsidiaries considered as a whole; and, to
the best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or
threatened by others;
(vi) This Agreement and the Pricing Agreement with
respect to the Designated Securities have been duly
authorized, executed and delivered by the Company;
(vii) The Designated Securities have been duly
authorized, executed, authenticated, issued and delivered and
constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Indenture;
and the Designated Securities and the Indenture conform in all
material respects to the descriptions thereof in the
Prospectus as amended or supplemented;
(viii) The Indenture has been duly authorized,
executed and delivered by the Company and, assuming due
authorization, execution and delivery by the Trustee,
constitutes a valid and legally binding instrument,
enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and the
Indenture has been duly qualified under the Trust Indenture
Act;
(ix) The issue and sale of the Designated Securities
and the compliance by the Company with all of the provisions
of the Designated Securities, the Indenture, this Agreement
and the Pricing Agreement with
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<PAGE> 12
respect to the Designated Securities and the consummation of
the transactions herein and therein contemplated will not in
any material respect conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to such
counsel to which the Company or any of its Material
Subsidiaries is a party or by which the Company or any of its
Material Subsidiaries is bound or to which any of the property
or assets of the Company or any of its Material Subsidiaries
is subject, nor will such actions result in any violation of
the provisions of the Company's Certificate of Incorporation
or By-laws or any statute or any order, rule or regulation
known to such counsel of any court or governmental agency or
body having jurisdiction over the Company or any of its
Material Subsidiaries or any of their properties;
(x) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale
of the Designated Securities or the consummation by the
Company of the transactions contemplated by this Agreement or
such Pricing Agreement or the Indenture, except such as have
been obtained under the Act and the Trust Indenture Act and
such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution
of the Designated Securities by the Underwriters;
(xi) Neither the Company nor any of its Material
Subsidiaries is in violation of its Certificate of
Incorporation of By-laws or in default in the performance or
observance of any material obligation, covenant or condition
contained in any indenture, mortgage, deed of trust, loan
agreement, material lease or other material agreement or
instrument to which it is a party or by which it or any of its
properties may be bound;
(xii) The statements set forth in the Prospectus
under the caption "Description of Debt Securities" and
"Description of the Notes", insofar as they purport to
constitute a summary of the terms of the Securities, and under
the caption "Plan of Distribution" and "Underwriting", insofar
as they purport to describe the provisions of the laws and
documents referred to therein, are accurate and fair, and
complete in all material respects;
(xiii) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the
financial statements and related schedules and other financial
and statistical data therein, as to which such counsel need
express no opinion), when they became effective or
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<PAGE> 13
were filed with the Commission, as the case may be, complied
as to form in all material respects with the requirements of
the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder; and such counsel has
no reason to believe that any of such documents, when they
became effective or were so filed, as the case may be,
contained, in the case of a registration statement which
became effective under the Act, an untrue statement of a
material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading, or, in the case of other documents which were
filed under the Act or the Exchange Act with the Commission,
an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made when such documents were so filed, not misleading;
and such counsel does not know of any amendment to the
Registration Statement required to be filed or any contracts
or other documents of a character required to be filed as an
exhibit to the Registration Statement or required to be
incorporated by reference into the Prospectus as amended or
supplemented or required to be described in the Registration
Statement or the Prospectus as amended or supplemented which
are not filed or incorporated by reference or described as
required;
(xiv) The Company is not and, after giving effect to
each offering and sale of the Securities, will not be an
"investment company" or an entity "controlled" by an
"investment company", as such terms are defined in the
Investment Company Act; and
(xv) [RESERVED];
In rendering such opinion, such counsel may state that his
opinion is limited to the laws of the States of Ohio and New York and
the federal laws of the United States;
(d) White & Case LLP, or other counsel for the Company
satisfactory to the Representatives, shall have furnished to the
Representatives their written opinion, dated the Time of Delivery for
such Designated Securities, in form and substance satisfactory to the
Representatives, to the effect that:
(i) If the Prospectus includes a caption "United
States Tax Considerations", the statements set forth in the
Prospectus under such caption, insofar as they purport to
constitute a summary of the laws referred to therein, are both
accurate and complete in all material respects; and
(ii) The Registration Statement and the Prospectus as
amended or supplemented and any further amendments and
supplements thereto made by the Company prior to the Time of
Delivery for the Designated Securities (other than the
financial statements and related schedules and other financial
data included or incorporated by reference therein or omitted
therefrom, and other than the Trustee's Statement of
Eligibility on Form T
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<PAGE> 14
-1, as to which such counsel need express no belief) comply as
to form in all material respects with the requirements of the
Act and the Trust Indenture Act and the rules and regulations
thereunder; although they do not assume any responsibility for
the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus,
such counsel does not believe that, as of its effective date,
the Registration Statement or any further amendment thereto
made by the Company prior to the Time of Delivery (other than
the financial statements and related schedules and other
financial data included or incorporated by reference therein
or omitted therefrom, and other than the Trustee's Statement
of Eligibility on Form T-1, as to which such counsel need
express no belief) contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading or that, as of its date, the Prospectus as amended
or supplemented or any further amendment or supplement thereto
made by the Company prior to the Time of Delivery (other than
the financial statements and related schedules and other
financial data included or incorporated by reference therein
or omitted therefrom, and other than the Trustee's Statement
of Eligibility on Form T-1, as to which such counsel need
express no belief) contained an untrue statement of a material
fact or omitted to state a material fact necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading or that, as of the Time of
Delivery, either the Registration Statement or the Prospectus
as amended or supplemented or any further amendment or
supplement thereto made by the Company prior to the Time of
Delivery (other than the financial statements and related
schedules and other financial data included or incorporated by
reference therein or omitted therefrom, and other than the
Trustee's Statement of Eligibility on Form T-1, as to which
such counsel need express no belief) contains an untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(e) On the date of the Pricing Agreement for such Designated
Securities and at the Time of Delivery for such Designated Securities,
Ernst & Young LLP,
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<PAGE> 15
the independent accountants of the Company who have certified the
financial statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement, shall have
furnished to the Representatives a letter, dated the effective date of
the Registration Statement or the date of the most recent report filed
with the Commission containing financial statements and incorporated by
reference in the Registration Statement, if the date of such report is
later than such effective date, and a letter dated such Time of
Delivery, respectively, to the effect set forth in Annex II hereto, and
with respect to such letter dated at such Time of Delivery, as to such
other matters as the Representatives may reasonably request and in form
and substance satisfactory to the Representatives;
(f) (i) The Company and its subsidiaries considered as a whole
shall not, since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended or
supplemented, have sustained any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in
the Prospectus as amended or supplemented, and (ii) since the
respective dates as of which information is given in the Prospectus as
amended or supplemented there shall not have been any change in the
capital stock or long-term debt of the Company and its subsidiaries
considered as a whole or any change, or any development involving a
prospective change, in or affecting the general affairs, management,
financial position, shareholders' equity or results of operations of
the Company and its subsidiaries considered as a whole, otherwise than
as set forth or contemplated in the Prospectus as amended or
supplemented, the effect of which, in any such case described in Clause
(i) or (ii), is in the judgment of the Representatives so material and
adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Designated Securities on the
terms and in the manner contemplated in the Prospectus as amended or
supplemented;
(g) On or after the date of the Pricing Agreement relating to
the Designated Securities (i) no downgrading shall have occurred in the
rating accorded the Company's debt securities by any "nationally
recognized statistical rating organization," as that term is defined by
the Commission for purposes of Rule 436(g)(2) under the Act and (ii) no
such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating
of any of the Company's debt securities;
(h) On or after the date of the Pricing Agreement relating to
the Designated Securities there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in
securities generally on the New York
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<PAGE> 16
Stock Exchange; (ii) a suspension or material limitation in trading in
the Company's securities on the New York Stock Exchange; (iii) a
general moratorium on commercial banking activities in New York
declared by either Federal or New York State authorities; or (iv) the
outbreak or escalation of hostilities involving the United States or
the declaration by the United States of a national emergency or war, if
the effect of any such event specified in this clause (iv) in the
judgment of the Representatives makes it impracticable or inadvisable
to proceed with the public offering or the delivery of the Designated
Securities on the terms and in the manner contemplated in the
Prospectus as amended or supplemented; and
(i) The Company shall have furnished or caused to be furnished
to the Representatives at the Time of Delivery for the Designated
Securities a certificate or certificates of officers of the Company
satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Company herein at and as of such
Time of Delivery, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a) and (f) of
this Section and as to such other matters as the Representatives may
reasonably request.
8. (a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the Prospectus as
amended or supplemented and any other prospectus relating to the Securities, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Securities, or any such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
of Designated Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities.
(b) Each Underwriter will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the Company
may become
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<PAGE> 17
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Securities, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without
giving prior written notice to the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is an
actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability arising out of such action or claim and (ii) does not
include a statement as to, or an admission of, fault, culpability or a failure
to act, by or on behalf of any indemnified party.
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<PAGE> 18
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
of the Designated Securities on the other from the offering of the Designated
Securities to which such loss, claim, damage or liability (or action in respect
thereof) relates. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
the Underwriters of the Designated Securities on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and such Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from such offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by such Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand
or such Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the applicable Designated Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
obligations of the Underwriters
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<PAGE> 19
of Designated Securities in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect to such
Securities and not joint.
(e) The obligations of the Company under this Section 8 shall
be in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Designated Securities which it has agreed to purchase under the
Pricing Agreement relating to such Designated Securities, the Representatives
may in their discretion arrange for themselves or another party or other parties
to purchase such Designated Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representatives do
not arrange for the purchase of such Designated Securities, then the Company
shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to the Representatives to
purchase such Designated Securities on such terms. In the event that, within the
respective prescribed period, the Representatives notify the Company that they
have so arranged for the purchase of such Designated Securities, or the Company
notifies the Representatives that it has so arranged for the purchase of such
Designated Securities, the Representatives or the Company shall have the right
to postpone the Time of Delivery for such Designated Securities for a period of
not more than seven days, in order to effect whatever changes may thereby be
made necessary in the Registration Statement or the Prospectus as amended or
supplemented, or in any other documents or arrangements, and the Company agrees
to file promptly any amendments or supplements to the Registration Statement or
the Prospectus which in the opinion of the Representatives may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include any
person substituted under this Section with like effect as if such person had
originally been a party to the Pricing Agreement with respect to such Designated
Securities.
(b) If, after giving effect to any arrangements for the
purchase of the Designated Securities of a defaulting Underwriter or
Underwriters by the Representatives and the Company as provided in subsection
(a) above, the aggregate principal amount of such Designated Securities which
remains unpurchased does not exceed one-eleventh of the aggregate principal
amount of the Designated Securities, then the Company shall have the right to
require each non-defaulting Underwriter to purchase the principal amount of
Designated Securities which such Underwriter agreed to purchase under the
Pricing Agreement relating to such Designated Securities and, in addition, to
require each non-defaulting Underwriter to purchase its pro rata share (based on
the principal amount of the
19
<PAGE> 20
Designated Securities which such Underwriter agreed to purchase under such
Pricing Agreement) of the Designated Securities of such defaulting Underwriter
or Underwriters for which such arrangements have not been made; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Designated Securities of a defaulting Underwriter or
Underwriters by the Representatives and the Company as provided in subsection
(a) above, the aggregate principal amount of Designated Securities which remains
unpurchased exceeds one-eleventh of the aggregate principal amount of the
Designated Securities, as referred to in subsection (b) above, or if the Company
shall not exercise the right described in subsection (b) above to require
non-defaulting Underwriters to purchase Designated Securities of a defaulting
Underwriter or Underwriters, then the Pricing Agreement relating to such
Designated Securities shall thereupon terminate, without liability on the part
of any non-defaulting Underwriter or the Company, except for the expenses to be
borne by the Company and the Underwriters as provided in Section 6 hereof and
the indemnity and contribution agreements in Section 8 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several Underwriters, as
set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, or the
Company, or any officer or director or controlling person of the Company, and
shall survive delivery of and payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to
Section 9 hereof, the Company shall not then be under any liability to any
Underwriter with respect to the Designated Securities covered by such Pricing
Agreement except as provided in Section 6 and Section 8 hereof; but, if for any
other reason Designated Securities are not delivered by or on behalf of the
Company as provided herein, the Company will reimburse the Underwriters through
the Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Section 6 and Section 8 hereof.
12. In all dealings hereunder, the Representatives of the
Underwriters of Designated Securities shall act on behalf of each of such
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by such Representatives jointly or by such of the
20
<PAGE> 21
Representatives, if any, as may be designated for such purpose in the Pricing
Agreement.
All statements, requests, notices and agreements hereunder
shall be in writing, and if to the Underwriters shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Representatives as
set forth in the Pricing Agreement; and if to the Company shall be delivered or
sent by mail, telex or facsimile transmission to the address of the Company set
forth in the Registration Statement: Attention: Secretary; provided, however,
that any notice to an Underwriter pursuant to Section 8(c) hereof shall be
delivered or sent by mail, telex or facsimile transmission to such Underwriter
at its address set forth in its Underwriters' Questionnaire, or telex
constituting such Questionnaire, which address will be supplied to the Company
by the Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding
upon, and inure solely to the benefit of, the Underwriters, the Company and, to
the extent provided in Section 8 and Section 10 hereof, the officers and
directors of the Company and each person who controls the Company or any
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement or any such Pricing Agreement. No purchaser of any of
the Securities from any Underwriter shall be deemed a successor or assign by
reason merely of such purchase.
14. Time shall be of the essence of each Pricing Agreement. As
used herein, "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement and each Pricing Agreement may be executed
by any one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
21
<PAGE> 22
If the foregoing is in accordance with your understanding,
please sign and return to us four counterparts hereof.
Very truly yours,
THE B.F.GOODRICH COMPANY
By:.................................
Name:
Title:
Accepted as of the date hereof:
[UNDERWRITER]
By:............................................
Name:
Title
22
<PAGE> 23
ANNEX I
Pricing Agreement
[ADDRESS]
. . . . . . . ., . . . . [date]
Dear Sirs:
The B.F.Goodrich Company, a New York corporation (the
"Company"), proposes, subject to the terms and conditions stated herein and in
the Underwriting Agreement, dated ........, 1998 (the "Underwriting Agreement"),
between the Company on the one hand and ________________ on the other hand, to
issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the Securities specified in Schedule II hereto (the "Designated
Securities"). Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Pricing
Agreement, except that each representation and warranty which refers to the
Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a
representation or warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined), and also a representation and
warranty as of the date of this Pricing Agreement in relation to the Prospectus
as amended or supplemented relating to the Designated Securities which are the
subject of this Pricing Agreement. Each reference to the Representatives herein
and in the provisions of the Underwriting Agreement so incorporated by reference
shall be deemed to refer to you. Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the Representatives and on behalf
of each of the Underwriters of the Designated Securities pursuant to Section 12
of the Underwriting Agreement and the address of the Representatives referred to
in such Section 12 are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to
the Prospectus, as the case may be, relating to the Designated Securities, in
the form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in
the Underwriting Agreement incorporated herein by reference, the Company agrees
to issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the time and
place and at the purchase price to the Under-
1
<PAGE> 24
writers set forth in Schedule II hereto, the principal amount of Designated
Securities set forth opposite the name of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding,
please sign and return to us ........ counterparts hereof, and upon acceptance
hereof by you, on behalf of each of the Underwriters, this letter and such
acceptance hereof, including the provisions of the Underwriting Agreement
incorporated herein by reference, shall constitute a binding agreement between
each of the Underwriters and the Company. It is understood that your acceptance
of this letter on behalf of each of the Underwriters is or will be pursuant to
the authority set forth in a form of Agreement among Underwriters, the form of
which shall be submitted to the Company for examination upon request, but
without warranty on the part of the Representatives as to the authority of the
signers thereof.
Very truly yours,
The B.F.Goodrich Company
By:....................................
Name:
Title:
Accepted as of the date hereof:
[Underwriter(s)]
By:........................................
Name:
Title:
On behalf of each of the Underwriters
- 2 -
<PAGE> 25
SCHEDULE I
Underwriter Principal
Amount of
Designated
Securities
to be
Purchased
------------
$
------------
Total..................................... $
============
- 3 -
<PAGE> 26
SCHEDULE II
Title of Designated Securities:
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due
Aggregate principal amount:
[$]
Price to Public:
__% of the principal amount of the Designated
Securities, plus accrued interest from to [and accrued amortization,
if any, from to ]
Purchase Price by Underwriters:
__% of the principal amount of the Designated
Securities, plus accrued interest from to [and accrued amortization,
if any, from to ]
Specified funds for payment of purchase price:
[New York] Clearing House funds
Indenture:
Indenture dated , 19 , between the Company
and , as Trustee
Maturity:
Interest Rate:
[ %] [Zero Coupon] [See Floating Rate Provisions]
Interest Payment Dates:
[months and dates]
Redemption Provisions:
- 4 -
<PAGE> 27
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise
than through the sinking fund, in whole or in part at the option of the
Company, in the amount of [$] or an integral multiple thereof,
[on or after , at the following redemption prices (expressed in percentages
of principal amount). If [redeemed on or before , %, and if]
redeemed during the 12-month period beginning ,
Redemption
Year Price
---- ----------
and thereafter at 100% of their principal amount, together in each case with
accrued interest to the redemption date.]
[on any interest payment date falling in or after , , at the
election of the Company, at a redemption price equal to the principal amount
thereof, plus accrued interest to the date of redemption.]
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law]
[Restriction on refunding]
Sinking Fund Provisions:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking fund to
retire [$] principal amount of Designated Securities on in each of the
years through at 100% of their principal amount plus accrued
interest][,together with [cumulative] [noncumulative] redemptions at the option
of the Company to retire an additional [$] principal amount of Designated
Securities in the years through at 100% of their principal amount
plus accrued interest].
[If Securities are extendable debt Securities, insert--
Extendable provisions:
- 5 -
<PAGE> 28
Securities are repayable on , [insert date and years], at the
option of the holder, at their principal amount with accrued interest. Initial
annual interest rate will be %, and thereafter annual interest rate will
be adjusted on , and to a rate not less than % of
the effective annual interest rate on U.S. Treasury obligations with
- -year maturities as of the [insert date 15 days prior to maturity date] prior
to such [insert maturity date].]
[If Securities are Floating Rate debt Securities, insert--
Floating rate provisions:
Initial annual interest rate will be % through and thereafter will be
adjusted [monthly] [on each , , ________________
and ] [to an annual rate of % above the average rate for
- -year [month] [securities] [certificates of deposit] issued by
and [insert names of banks].] [and the annual interest rate
[thereafter] [from through ] will be the interest
yield equivalent of the weekly average per annum market discount rate for
- -month Treasury bills plus % of Interest Differential (the excess, if any, of
(i) then current weekly average per annum secondary market yield for
- -month certificates of deposit over (ii) then current interest yield equivalent
of the weekly average per annum market discount rate for -month Treasury
bills); [from and thereafter the rate will be the then current
interest yield equivalent plus % of Interest Differential].]
Defeasance provisions:
Time of Delivery:
Closing Location:
Names and addresses of Representatives:
Designated Representatives:
- 6 -
<PAGE> 29
Address for Notices, etc.:
[Other Terms]*:
*A description of particular tax, accounting or other unusual features (such as
the addition of event risk provisions) of the Securities should be set forth,
or referenced to an attached and accompanying description, if necessary to
ensure agreement as to the terms of the Securities to be purchased and sold.
Such a description might appropriately be in the form in which such features
will be described in the Prospectus Supplement for the offering.
- 7 -
<PAGE> 30
ANNEX II
Pursuant to Section 7(e) of the Underwriting Agreement, Ernst & Young LLP
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules (and, if applicable, prospective
financial statements and/or pro forma financial information) examined by them
and included or incorporated by reference in the Registration Statement or
the Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Act or the Exchange Act, if applicable, and
the related published rules and regulations thereunder; and, if applicable,
they have made a review in accordance with standards established by the
American Institute of Certified Public Accountants of the consolidated
interim financial statements, selected financial data, pro forma financial
information, prospective financial statements, and/or condensed financial
statements derived from audited financial statements of the Company for the
periods specified in such letter, as indicated in their reports thereon,
copies of which have been separately furnished to the Representatives;
(iii) They have made a review in accordance with standards established
by the American Institute of Certified Public Accountants of the unaudited
condensed consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the Prospectus as indicated
in their reports thereon copies of which have been separately furnished to
the Representatives; and on the basis of specified procedures including
inquiries of officials of the Company who have responsibility for financial
and accounting matters regarding whether the unaudited condensed consolidated
financial statement referred to in paragraph (vi)(A)(i) below comply as to
form in all material respects with the applicable accounting requirements of
the Act and the Exchange Act and the related published rules and regulations,
nothing came to their attention that caused them to believe that the
unaudited condensed consolidated financial statements do not comply as to
form in all material respects with the applicable accounting requirements of
the Act and the related published rules and regulations;
(iv) Subject to the introductory paragraphs appearing under the caption
"Selected Consolidated Financial Data" in the Registration Statement, the
unaudited selected financial information with respect to the consolidated
results of operations and financial position of the Company for the five most
recent fiscal years included in the Prospectus and included or incorporated
by reference in Item 6 of the Company's Annual Report on Form 10-K for the
most recent fiscal year agrees with the corresponding amounts (after
restatement where applicable) in the audited consolidated financial
statements for the five such fiscal years which were included or incorporated
by reference in the Company's Annual Reports on Form 10-K for such fiscal
years;
1
<PAGE> 31
(v) They have compared the information in the Prospectus under the
selected captions with the disclosure requirements of Regulation S-K and on
the basis of limited procedures specified in such letter nothing came to
their attention as a result of the foregoing procedures that caused them to
believe that this information does not conform in all material respects with
the disclosure requirements of Items 301, 302, 402 and 503(d), respectively,
of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of the
minute books of the Company and its subsidiaries since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus, inquiries of officials of the Company and its subsidiaries
responsible for financial and accounting matters and such other inquiries and
procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
(A) the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included or incorporated by reference in the Company's Quarterly Reports
on Form 10-Q incorporated by reference in the Prospectus do not comply as
to form in all material respects with the applicable accounting
requirements of the Exchange Act as it applies to Form 10-Q and the
related published rules and regulations thereunder or are not in
conformity with generally accepted accounting principles applied on a
basis substantially consistent with the basis for the audited
consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included or incorporated by
reference in the Company's Annual Report on Form 10-K for the most recent
fiscal year;
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the corresponding
items in the unaudited consolidated financial statements from which such
data and items were derived, and any such unaudited data and items were
not determined on a basis substantially consistent with the basis for the
corresponding amounts in the audited consolidated financial statements
included or incorporated by reference in the Company's Annual Report on
Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not included in
the Prospectus but from which were derived the unaudited condensed
financial statements referred to in Clause (A) and any unaudited income
statement data and balance sheet items included in the Prospectus and
referred to in Clause (B) were not determined on a basis substantially
consistent with the basis for the audited financial statements included
or incorporated by reference in the Company's Annual Report on Form 10-K
for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements included
2
<PAGE> 32
or incorporated by reference in the Prospectus do not comply as to form
in all material respects with the applicable accounting requirements of
the Act and the published rules and regulations thereunder or the pro
forma adjustments have not been properly applied to the historical
amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated
capital stock (other than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in each case which
were outstanding on the date of the latest balance sheet included or
incorporated by reference in the Prospectus) or any increases in
consolidated long-term debt of the Company and its subsidiaries, or any
decreases in consolidated net current assets or net assets or other items
specified by the Representatives, or any increases in any items specified
by the Representatives, in each case as compared with amounts shown in
the latest balance sheet included or incorporated by reference in the
Prospectus, except in each case for changes, increases or decreases which
the Prospectus discloses have occurred or may occur or which are
described in such letter; and
(F) for the period from the date of the latest financial statements
included or incorporated by reference in the Prospectus to the specified
date referred to in Clause (E) there were any decreases in consolidated
net revenues or operating profit or the total or per share amounts of
consolidated net income or other items specified by the Representatives,
or any increases in any items specified by the Representatives, in each
case as compared with the comparable period of the preceding year and
with any other period of corresponding length specified by the
Representatives, except in each case for increases or decreases which the
Prospectus discloses have occurred or may occur or which are described in
such letter; and
(vii) In addition to the audit referred to in their report(s) included
or incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (iii) and (iv) above, they have carried out certain specified
procedures, not constituting an examination in accordance with generally
accepted auditing standards, with respect to certain amounts, percentages and
financial information specified by the Representatives which are derived from
the general accounting records of the Company and its subsidiaries, which
appear in the Prospectus (excluding documents incorporated by reference), or
in Part II of, or in exhibits and schedules to, the Registration Statement
specified by the Representatives or in documents incorporated by reference in
the Prospectus specified by the Representatives, and have compared certain of
such amounts, percentages and financial information with the accounting
records of the Company and its subsidiaries and have found them to be in
agreement.
All references in this Annex II to the Prospectus shall be deemed to refer
to the Prospectus (including the documents incorporated by reference therein)
as defined in the Underwriting Agreement as of the date of the letter delivered
on the date of the Pricing Agreement for purposes
3
<PAGE> 33
of such letter and to the Prospectus as amended or supplemented (including the
documents incorporated by reference therein) in relation to the applicable
Designated Securities for purposes of the letter delivered at the Time of
Delivery for such Designated Securities.
4
<PAGE> 1
Exhibit 5
[logo] Nicholas J. Calise
The BFGoodrich Company Vice President
4020 Kinross Lakes Parkway Associate General Counsel
Richfield, OH 44286-9368 and Secretary
Tele: (330) 659-7711
Fax: (330) 659-7727
e-mail:[email protected]
April 27, 1999
The B.F.Goodrich Company
4020 Kinross Lakes Parkway
Richfield, OH 44286-9368
Re: Registration Statement on Form S-3
------------------------------------
Ladies and Gentlemen:
I have examined the Registration Statement on Form S-3 (the "Registration
Statement"), filed by The B.F.Goodrich Company (the "Company") with the
Securities and Exchange Commission (the "Commission"), pursuant to the
Securities Act of 1933, as amended (the "Act"), for the registration of
$200,000,000 aggregate principal amount of the Company's Debt Securities (the
"Securities") to be issued under an indenture (the "Indenture") dated as of May
1, 1991 between the Company and Harris Trust and Savings Bank (the "Trustee").
It is my opinion that when the Registration Statement has become effective
under the terms of the Act, the terms of any Securities and of their issuance
and sale have been duly established in conformity with the terms of indenture
so as not to violate any applicable law or result in a default under or breach
of any agreement or instrument binding upon the Company and so as to comply
with any requirement or restriction imposed by any court or governmental body
having jurisdiction over the Company, and such Securities have been duly
executed and authenticated in accordance with the indenture and issued and sold
as described in the Registration Statement (including any prospectus and
prospectus supplement relating to such Securities), such Securities will
consitute the valid and legally binding obligations of the Company, subject to
bankruptcy, insolvency, and similar laws affecting the enforcement of
creditors' rights generally and to general principles of equity (regardless of
whether endorsement is sought in a proceeding in equity or at law).
The opinions expressed herein are limited to matters of the laws of the States
of Ohio and New York and the federal laws of the United States. I express no
opinion as to the effect of any applicable law of any other jurisdiction.
<PAGE> 2
In rendering such opinions, I have relied as to certain matters on information
obtained from public officials, officers of the Company and other sources I
believe to be responsible, and I have assumed that the Indenture has been duly
authorized, executed and delivered by the Trustee, an assumption that I have
not independently verified.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to me under the caption "Legal
Opinions" in the prospectus forming a part of the Registration Statement.
Very truly yours,
Nicholas J. Calise
Vice President, Associate General
Counsel and Secretary
NJC/th
<PAGE> 1
EXHIBIT 12
THE B.F.GOODRICH COMPANY
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(In millions, except for ratios)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
------------------------------------------
1994 1995 1996 1997 1998
------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C>
COMPUTATION OF EARNINGS:
Income from continuing operations before income taxes,
QUIP distributions and cum, eff. of change in accounting method $102.9 $157.2 $194.4 $217.8 $384.9
Add (Deduct):
Interest expense, net of capitalized interest 106.9 111.5 101.2 77.0 87.6
Amortization of interest previously capitalized 1.3 1.4 1.3 1.5 2.1
Portion of rent expense representative of an interest factor 10.1 10.5 10.4 10.0 10.5
------ ------ ------ ------ ------
EARNINGS $221.2 $280.6 $307.3 $306.3 $485.1
====== ====== ====== ====== ======
COMPUTATION OF FIXED CHARGES:
Interest expense, net of capitalized interest $106.9 $111.5 $101.2 $ 77.0 $ 87.6
Distributions on quarterly income preferred securities -- $ 5.1 $ 10.5 $ 10.5 $ 10.5
Portion of rent expense representative of an interest factor 10.1 10.5 10.4 10.0 10.5
Capitalized interest 1.0 2.7 6.7 5.3 3.5
------ ------ ------ ------ ------
FIXED CHARGES $118.0 $129.8 $128.8 $102.8 $112.1
------ ------ ------ ------ ------
RATIO OF EARNINGS TO FIXED CHARGES 1.87 2.16 2.39 2.98 4.33
------ ------ ------ ------ ------
</TABLE>
<PAGE> 1
Exhibit 23.a
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and in Post-Effective Amendment No. 1 to the
Registration Statement (Form S-1 No. 333-48775) and related Prospectus of The
B.F.Goodrich Company for the registration of debt securities and to the
incorporation by reference therein of our report, dated February 5, 1999, with
respect to the consolidated financial statements of The B.F.Goodrich Company
included in its Annual Report (Form 10-K) for the year ended December 31, 1998,
filed with the Securities Exchange Commission.
ERNST & YOUNG LLP
Cleveland, Ohio
April 22, 1999
<PAGE> 1
Exhibit 23.b
INDEPENDENT AUDITORS CONSENT
We consent to the incorporation by reference in this Registration Statement on
Form S-3 and in this Post-Effective Amendment No. 1 to Registration Statement
No. 333-48775 on Form S-1 of The B.F.Goodrich Company of our report dated
September 11, 1997, on our audit of Rohr, Inc. for the year ended July 31, 1996,
appearing in the Annual Report on Form 10-K of The B.F.Goodrich Company for the
year ended December 31, 1998, and to the reference to us under the heading
"Experts" in the Prospectus, which is part of this Registration Statement.
/s/ Deloitte & Touche LLP
San Diego, California
April 22, 1999
<PAGE> 1
Exhibit 23c
ARTHUR ANDERSEN LLP
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement (Form S-3) and in Post-Effective
Amendment No. 1 to Registration Statement File No. 333-48775 (Form S-1) of our
report dated January 22, 1999, included in Coltec Industries Inc's Annual
Report on Form 10-K for the year ended December 31, 1998, and to all references
to our firm included in this registration statement.
/s/ Arthur Andersen LLP
Charlotte, North Carolina,
April 28, 1999.
<PAGE> 1
Exhibit 24(a)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Les C. Vinney, Terrence G. Linnert and Nicholas
J. Calise, and each of them, his or her true and lawful attorneys-in-fact and
agents, with full power of substitution and revocation, in his or her name and
on his or her behalf, to do any and all acts and things and to execute any and
all instruments which they may deem necessary or advisable to enable The
B.F.Goodrich Company (the "Company") to comply with the Securities Act of 1933
(the "Act") and any rules, regulations and requirements of the Securities and
Exchange Commission in respect thereof, in connection with the registration
under the Act of Debt Securities including Medium Term Notes in an aggregate
principal amount not to exceed $200 million remaining available under
Registration Statement No. 333-48775, and up to 2,761,585 shares (including the
754,717 shares in Registration Statement No. 333-03343) of the Company's Common
Stock held by the Master Trust for the Company's salary and wage defined
benefit plans, including power and authority to sign his or her name in any and
all capacities (including his or her capacity as a Director and/or Officer of
the Company) to one or more registration statements on Form S-1, S-3 or such
other available form as may be approved by officers of the Company, and to any
and all amendments, including post-effective amendments, to such registration
statements; and the undersigned hereby ratifies and confirms all that said
attorneys-in-fact and agents, or any of them, shall lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, the undersigned have subscribed these presents this
7th day of December, 1998.
<TABLE>
<S> <C>
/s/ David L. Burner /s/ Diane C. Creel
---------------------------- ----------------------------
(David L. Burner) (Diane C. Creel)
Chairman of the Board, Chief Director
Executive Officer and Director
(Principal Executive Officer)
/s/ George A. Davidson, Jr. /s/ James J. Glasser
---------------------------- ----------------------------
(George A. Davidson, Jr.) (James J. Glasser)
Director Director
/s/ Jodie K. Glore /s/ Robert D. Koney, Jr.
---------------------------- ----------------------------
(Jodie K. Glore) (Robert D. Koney, Jr.)
Director Vice President and Controller
(Principal Accounting Officer)
</TABLE>
<PAGE> 2
<TABLE>
<S> <C>
/s/ Douglas E. Olesen /s/ Richard de J. Osborne
---------------------------- ----------------------------
(Douglas E. Olesen) (Richard de J. Osborne)
Director Director
/s/ Alfred M. Rankin, Jr. /s/ Robert H. Rau
---------------------------- ----------------------------
(Alfred M. Rankin, Jr.) (Robert H. Rau)
Director Director
/s/ L. C. Vinney /s/ James R. Wilson
---------------------------- ----------------------------
(L.C. Vinney) (James R. Wilson)
Senior Vice President and Chief Financial Officer Director
(Principal Financial Officer)
/s/ A. Thomas Young
----------------------------
(A. Thomas Young)
Director
</TABLE>
<PAGE> 1
Exhibit 24(b)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Terrence G. Linnert and Nicholas J. Calise, and
each of them, his or her true and lawfully attorneys-in-fact and agents, with
full power of substitution and revocation, in his or her name and on his or her
behalf, to do any and all acts and things and to execute any and all
instruments which they may deem necessary or advisable to enable The
B.F.Goodrich Company (the "Company") to comply with the Securities Act of 1933
(the "Act") and any rules, regulations and requirements of the Securities and
Exchange Commission in respect thereof, in connection with the registration
under the Act of Debt Securities including Medium Term Notes in an aggregate
principal amount not to exceed $500 million and up to 2,761, 585 shares of the
Company's Common Stock held by the Master Trust for the company's salary and
wage defined benefit plans, including power and authority to sign his or her
name in any and all capacities (including his or her capacity as a Director
and/or Officer of the Company) to one or more registration statements on Form
S-1, or such other available form as may be approved by officers of the Company
and to any and all amendments, including post-effective amendments, to such
registration statements; and the undersigned hereby ratifies and confirms all
that said attorneys-in-fact and agents, or any of them, shall lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned have subscribed these presents this
20th day of April 1999.
<TABLE>
<S> <C>
/s/ L. A. Chapman /s/ Robert D. Koney, Jr.
---------------------------- -----------------------------
(Laurence A. Chapman) (Robert D. Koney, Jr.)
Senior Vice President and Vice President and Controller
Chief Financial Officer (Principal Accounting Officer)
(Principal Financial Officer
</TABLE>
<PAGE> 1
Exhibit 25
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
Statement of Eligibility
Under the Trust Indenture Act of 1939
of a Corporation Designated to Act as
Trustee
Check if an Application to Determine
Eligibility of a Trustee Pursuant to Section
305(b)(2) _______________
HARRIS TRUST AND SAVINGS BANK
(Name of Trustee)
<TABLE>
<S> <C>
Illinois 36-1194448
(State of Incorporation) (I.R.S. Employer Identification No.)
</TABLE>
111 West Monroe Street; Chicago, Illinois 60603
(Address of principal executive offices)
Daryl L. Pomykala; Harris Trust and Savings Bank;
311 West Monroe Street; Chicago, Illinois, 60606
312/461-7458
(Name, address and telephone number for agent for service)
The B.F.Goodrich Company
(Name of obligor)
New York
(State of Incorporation)
34-0252680
(I.R.S. Employer Identification Number)
4020 Kinross Lakes Parkway Richfield, Ohio 44286-9368, (330) 659-7600
(Address of principal executive offices)
Debt Securities
(Title of Indenture Securities)
<PAGE> 2
1. GENERAL INFORMATION. Furnish the following information as to the
Trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Commissioner of Banks and Trust Companies, State of Illinois,
Springfield, Illinois; Chicago Clearing House Association, 164 West
Jackson Boulevard, Chicago, Illinois; Federal Deposit Insurance
Corporation, Washington, D.C.; The Board of Governors of the
Federal Reserve System,Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Harris Trust and Savings Bank is authorized to exercise corporate
trust powers.
2. AFFILIATIONS WITH OBLIGOR. If the Obligor is an affiliate of the
Trustee, describe each such affiliation.
The Obligor is not an affiliate of the Trustee.
3. thru 15.
NO RESPONSE NECESSARY
16. LIST OF EXHIBITS.
1. A copy of the articles of association of the Trustee is now
in effect which includes the authority of the trustee to commence
business and to exercise corporate trust powers.
A copy of the Certificate of Merger dated April 1, 1972 between Harris
Trust and Savings Bank, HTS Bank and Harris Bankcorp, Inc. which
constitutes the articles of association of the Trustee as now in
effect and includes the authority of the Trustee to commence business
and to exercise corporate trust powers was filed in connection with
the Registration Statement of Louisville Gas and Electric Company,
File No. 2-44295, and is incorporated herein by reference.
2. A copy of the existing by-laws of the Trustee.
A copy of the existing by-laws of the Trustee was filed in
connection with the Registration Statement of C-Cube Microsystems,
Inc.; File No. 33-97166, and is incorporated herein by reference.
3. The consents of the Trustee required by Section 321(b) of the
Act.
(included as Exhibit A to this statement)
4. A copy of the latest report of condition of the Trustee
published pursuant to law or the requirements of its supervising or
examining authority.
(included as Exhibit B to this statement)
2
<PAGE> 3
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee,
HARRIS TRUST AND SAVINGS BANK, a corporation organized and existing under the
laws of the State of Illinois, has duly caused this statement of eligibility to
be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Chicago, and State of Illinois, on the 27th day of April, 1999.
HARRIS TRUST AND SAVINGS BANK
By: /S/ Daryl L. Pomykala
----------------------------
Daryl L. Pomykala
Assistant Vice President
EXHIBIT A
The consents of the Trustee required by Section 321(b) of the Act.
Harris Trust and Savings Bank, as the Trustee herein named, hereby consents
that reports of examinations of said trustee by Federal and State authorities
may be furnished by such authorities to the Securities and Exchange Commission
upon request therefor.
HARRIS TRUST AND SAVINGS BANK
By: /S/ Daryl L. Pomykala
----------------------------
Daryl L. Pomykala
Assistant Vice President
3
<PAGE> 4
EXHIBIT B
Attached is a true and correct copy of the statement of condition of Harris
Trust and Savings Bank as of December 31, 1998, as published in accordance
with a call made by the State Banking Authority and by the Federal Reserve
Bank of the Seventh Reserve District.
HARRIS BANK
Harris Trust and Savings Bank
111 West Monroe Street
Chicago, Illinois 60603
of Chicago, Illinois, And Foreign and Domestic Subsidiaries, at the close of
business on December 31, 1998, a state banking institution organized and
operating under the banking laws of this State and a member of the Federal
Reserve System. Published in accordance with a call made by the Commissioner
of Banks and Trust Companies of the State of Illinois and by the Federal
Reserve Bank of this District.
Bank's Transit Number 71000288
<TABLE>
<S> <C> <C>
THOUSANDS
ASSETS OF DOLLARS
Cash and balances due from depository institutions:
Non-interest bearing balances and currency and coin.................................. $ 1,435,233
Interest bearing balances............................................................ $ 98,929
Securities:...........................................................................
a. Held-to-maturity securities $ 0
b. Available-for-sale securities $ 5,295,498
Federal funds sold and securities purchased under agreements to resell $ 151,575
Loans and lease financing receivables:
Loans and leases, net of unearned income............................................. $ 9,320,939
LESS: Allowance for loan and lease losses........................................... $ 108,280
-----------
Loans and leases, net of unearned income, allowance, and reserve
(item 4.a minus 4.b)................................................................. $ 9,212,659
Assets held in trading accounts....................................................... $ 252,881
Premises and fixed assets (including capitalized leases).............................. $ 271,540
Other real estate owned............................................................... $ 366
Investments in unconsolidated subsidiaries and associated companies................... $ 57
Customer's liability to this bank on acceptances outstanding.......................... $ 30,829
Intangible assets..................................................................... $ 257,627
Other assets.......................................................................... $ 1,093,599
-----------
TOTAL ASSETS $18,100,793
</TABLE>
4
<PAGE> 5
<TABLE>
<S> <C> <C>
LIABILITIES
Deposits:
In domestic offices..................................................................... $10,270,499
Non-interest bearing.................................................................... $3,410,568
Interest bearing........................................................................ $6,859,931
In foreign offices, Edge and Agreement subsidiaries, and IBF's.......................... $ 935,609
Non-interest bearing.................................................................... $ 69,215
Interest bearing........................................................................ $ 866,394
Federal funds purchased and securities sold under agreements to repurchase in
domestic offices of the bank and of its Edge and Agreement subsidiaries, and in IBF's:
Federal funds purchased & securities sold under agreements to repurchase................. $ 3,642,049
Trading Liabilities 131,909
Other borrowed money:....................................................................
a. With remaining maturity of one year or less $ 1,107,125
b. With remaining maturity of more than one year $ 0
Bank's liability on acceptances executed and outstanding $ 30,829
Subordinated notes and debentures........................................................ $ 225,000
Other liabilities........................................................................ $ 424,376
-----------
TOTAL LIABILITIES $16,767,396
===========
EQUITY CAPITAL
Common stock............................................................................. $ 100,000
Surplus.................................................................................. $ 608,116
a. Undivided profits and capital reserves............................................... $ 593,973
b. Net unrealized holding gains (losses) on available-for-sale securities $ 31,308
-----------
TOTAL EQUITY CAPITAL $ 1,333,397
===========
Total liabilities, limited-life preferred stock, and equity capital...................... $18,100,793
===========
</TABLE>
I, Pamela Piarowski, Vice President of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with
the instructions issued by the Board of Governors of the Federal Reserve
System and is true to the best of my knowledge and belief.
PAMELA PIAROWSKI
1/27/99
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and, to the best of
our knowledge and belief, has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System
and the Commissioner of Banks and Trust Companies of the State of Illinois and
is true and correct.
EDWARD W. LYMAN,
ALAN G. McNALLY,
RICHARD E. TERRY
Directors.
5
<PAGE> 6
<TABLE>
<S> <C> <C>
[LOGO]
Harris Trust and 311 West Monroe, 12th Floor By Fax: (312) 461-3525
Savings Bank P. O. Box 755
Chicago, Illinois 60690
INDENTURE TRUST DIVISION
</TABLE>
________________________________________________________________________________
TRUSTEE'S CERTIFICATE
HARRIS TRUST AND SAVINGS BANK, as Trustee hereby certifies that:
1. Attached hereto as Annex A is a true copy of extracts of the By-laws of
Harris Trust and Savings Bank duly adopted by the Board of Directors of Harris
Trust and Savings Bank, which By-laws have been in full force and effect at all
times since September 1, 1997 to and including the date hereof.
2. The Indenture, dated as of May 1, 1991 (the "Indenture"), between The
B.F.Goodrich Company (the "Company") and Harris Trust and Savings Bank, as
Trustee (the "Trustee"), has been duly executed and delivered in the name and
on behalf of the Trustee by R.G. Mason, one of its Vice Presidents, and the
Trustee's corporate seal has been duly affixed thereto and duly attested by
F.A. Pierson, one of its Assistant Secretaries.
3. Each person who, on behalf of the Trustee, executed and delivered the
Indenture, attested its corporate seal or authenticated the notes issued
thereunder was at the date thereof duly elected, appointed or authorized,
qualified and acting as officer the Trustee and dully authorized to perform
such acts at the respective times of such acts and the signatures of such
persons appearing on such documents are their genuine signatures.
IN WITNESS WHEREOF, Harris Trust and Savings Bank has caused this
certificate to be executed in its corporate name by an officer thereunto duly
authorized and its corporate seal to be affixed hereto.
Dated: April 27, 1999
HARRIS TRUST AND SAVINGS BANK, as Trustee
By:/s/ Daryl L. Pomykala
---------------------
D. Pomykala
Assistant Vice President
<PAGE> 7
ANNEX A
HARRIS TRUST AND
SAVINGS BANK
BYLAWS
DECEMBER, 1996
[LOGO]
<PAGE> 8
ARTICLE I: MEETINGS OF STOCKHOLDERS
SECTION 1. TIME AND NOTICE. The annual meeting of stockholders shall be held
on the third Wednesday of April as soon as practicable after the adjournment
of the annual meeting of the stockholders of Harris Bankcorp, Inc. for the
election of directors and for such other business as may properly come before
the meeting. Notice of the place, day and time of the annual meeting shall
be given by mailing not less than ten nor more than forty days previous to
such meeting, a notice addressed to each stockholder entitled to vote, at his
address as the same shall appear on the stock books of the Bank.
SECTION 2. SPECIAL MEETINGS. Special meetings of stockholders may be called
at any time by the Board of Directors or by the Chairman of the Board, a Vice
Chair of the Board or the President or by a majority of the directors without
a meeting. It shall be the duty of the Chairman of the Board to call such
meetings whenever requested in writing so to do by stockholders owning a
majority of the capital stock. Notice of such special meetings stating the
purpose thereof shall be given in the same manner as for the annual meeting,
unless the purpose of the meeting is to change the Bank's charter, in which
event such notice shall be given within the time and published as provided for
in the following Section 3.
SECTION 3. CHARTER AMENDMENT. If any special meeting is called to effect a
change in the Bank's charter as provided for in Section 17 of the Illinois
Banking Act, the Board of Directors shall adopt a resolution setting forth the
proposed amendment and directing that it be submitted to vote at the special
meeting; and notice of the purpose, place, day and hour of the special meeting
shall be given by publication thereof at least once in each week for three
successive weeks immediately preceding the week during which the meeting is to
be held in a newspaper published in the city of Chicago and by mailing such
notice not less than thirty days previous to such meeting to each stockholder
entitled to vote at his address as the same shall appear on the stock books of
the Bank.
SECTION 4. LOCATION. The Board of Directors may designate any place in the
State of Illinois as the place of meeting for any annual or special meeting.
SECTION 5. RECORD DATE. In lieu of closing the stock transfer books for the
purpose of determining stockholders entitled to notice of or to vote at any
meeting of stockholders, or stockholders entitled to receive payment of any
dividend, or in order to make a determination of stockholders for any other
proper purpose, the Board of Directors may fix in advance a date as the record
date for any such determination. In the absence of specific action by the
Board closing the stock transfer books or fixing a different record date for
each annual and each special meeting of the stockholders, the date on which
notice of such meeting is mailed shall be the record date for such
determination of stockholders entitled to vote.
SECTION 6. QUORUM. A majority of the outstanding shares of the capital stock
of the Bank, represented either by the holders thereof or by duly
authenticated proxies, shall constitute a quorum for the transaction of
business at any meeting of the stockholders, but in the absence of a quorum a
meeting may be adjourned from time to time without notice to the stockholders.
ARTICLE II: DIRECTORS
SECTION 1. POWERS. The business and affairs of the Bank shall be managed by
the Board of Directors. The Board of Directors may adopt such rules and
regulations for the conduct of its meetings and the management of the affairs
of the Bank as it may deem proper, not inconsistent with the laws of the
United States, of the State of Illinois, or these bylaws; and all officers and
employees shall strictly adhere to and be bound by such rules and regulations.
Directors need not be stockholders of the Bank or of any company which has
control over the Bank within the meaning of Section 2 of the Illinois Bank
Holding Company Act, as now or hereafter amended.
<PAGE> 9
SECTION 2. COMMITTEES. The Board of Directors may, by resolution or
resolutions passed by majority of the whole Board, designate an Executive
Committee and such other committees as it may deem necessary, and from time to
time suspend or continue the powers and duties of any committee. The Chairman
of the Board, a Vice Chair of the Board, the President or the member or
members of any Board committee present at any duly called meeting and not
disqualified from voting, whether or not such member or members constitute a
quorum, may designate another member or other members of the Board of
Directors to act at such meeting, and any director or directors so designated
shall have the same powers, duties and compensation as regular members. The
presence at the meeting of any director or directors so designated shall be
considered in determining whether a quorum is present.
SECTION 3. VACANCIES. Vacancies in the Board of Directors may be filled for
the unexpired term at a special meeting of the stockholders called for that
purpose. Additionally, the Board of Directors pursuant to paragraph (5) of
Section 16 of the Illinois Banking Act, by the affirmative vote of a majority
of the Board of Directors at any regular or special meeting of the Board, may
during the interval between annual meetings of stockholders elect not more
than a total of three persons as directors to fill vacancies arising during
such interval.
SECTION 4. MEETINGS. Regular meetings of the Board of Directors shall be
held on the third Wednesday of each month at 11:00 o'clock a.m. (except for
the meeting, if any, in January, April, July and October which shall be held
at 9:30 o'clock a.m.) unless such day be a legal holiday, in which case the
regular meeting shall be held at the same hour on the next business day, or at
such other time, which may be a legal holiday, as the Board of Directors may
determine. There shall be a minimum of two such regular meetings in each
calendar quarter, the times of such meetings to be determined by the Chairman
of the Board, or in his temporary absence, a Vice Chair of the Board. All
such regular meetings shall be held at the offices of the Bank, or at such
other place or such other time as the Chairman of the Board or a Vice Chair of
the Board may at any time designate, and in the event of such designation,
notice of the alternate meeting place or time shall be given by mailing the
same to each director not later than five business days preceding the date of
the meeting, or by telegraphing or telefaxing the same to him or her or
delivering the same to him or her personally not later than the day previous
to such meeting, but save for any such notice of alternate meeting place or
time, such regular meetings shall be held without other notice than this
bylaw. Special meetings may be called by the Chairman of the Board or a Vice
Chair of the Board. Except to the extent the time or method of giving notice
is regulated by statute, notice of any such meeting shall be given in the same
manner as provided for notice or regular meetings. Any director may waive
notice of any meeting by waiver signed either before or after such meeting.
Except as otherwise required by statute or these bylaws, neither the business
to be transacted at, nor the purpose of any meeting need be specified in the
notice or waiver.
SECTION 5. QUORUM. A majority of the authorized number of directors shall
constitute a quorum for the transaction of business at any meeting of the
Board of Directors, but less than a quorum shall have power to take a recess
or adjourn a meeting to another day or hour.
SECTION 6. SECRETARY OF THE BOARD. The Board of Directors may appoint a
Secretary of the Board other than the Secretary of the Bank as provided for in
Section 10 of Article III of the bylaws, who may or may not be a member of the
Board and who shall keep the minutes of the meetings of the Board and perform
such other duties as the Board shall from time to time prescribe.
<PAGE> 10
ARTICLE III: OFFICERS
SECTION 1. NUMBER AND TENURE. The officers of the Bank shall be chosen by the
Board of Directors and may consist of a Chairman of the Board, one or more
Vice Chairs of the Board and a President, each of whom shall be a member of
the Board, and one of whom shall be designated the Chief Executive Officer,
one or more Senior Executive Vice Presidents, one or more Executive Vice
Presidents, and one or more Executives (of any whose titles may be accompanied
by reference to the area of their respective responsibilities), one or more
Senior Vice Presidents, Vice President, Assistant Vice Presidents, a
Secretary, one or more Assistant Secretaries, a Cashier, a Controller, an
Auditor, one or more Trust Counsel, and such other officers as the Chief
Executive Officer may from time to time designate. Officer directors shall be
elected by the Board. Executives who are not also directors shall be elected
by the Directors Committee on Compensation. All other officers shall be
appointed by the Chief Executive Officer. Officers, whether elected or
appointed, shall hold their respective offices until the next succeeding
annual meeting of stockholders and their successors are elected and qualified,
or until their retirement, resignation, removal or appointment to another
office. Any officer may be removed by the Chief Executive Officer or the
Board at any time with or without cause.
SECTION 2. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall
exercise general control and supervision of the business and affairs of the
Bank, shall see to it that all resolutions and orders of the Board of
Directors are effected and shall have such other powers and duties as the
directors may specify. He may appoint persons to hold office as Senior Vice
President or below. During any absence or disability to act of the Chief
Executive Officer, his powers and duties shall be exercised and performed by a
Vice Chair of the Board, the President, or by an officer designated by the
Board of Directors for that purpose. He shall be an ex-officio member of all
Board committees.
SECTION 3. CHAIRMAN OF THE BOARD. The Chairman of the Board shall preside at
all meetings of the Board of Directors and of the stockholders. He shall have
general responsibility for all Board matters, including without limitation,
the development of corporate governance policies and processes, committee
assignments, and meeting agendas. He shall have such other powers and duties
as the Board of Directors may specify. He shall be an ex-officio member of
all Board committees.
SECTION 4. PRESIDENT. The President shall have such powers and duties as the
Board of Directors or the Chief Executive Officer may specify. During any
absence or disability to act of the President, his powers and duties shall be
performed and exercised by an officer designated in writing by the Chief
Executive, or in the absence of such designation, by an officer designated by
the Board of Directors for that purpose.
SECTION 5. CHIEF OPERATING OFFICER. The Chief Operating Officer shall manage
or supervise the management of the day-to-day operations of the Bank and shall
have such powers and duties as the Chief Executive Officer or the Board of
Directors may specify.
SECTION 6. VICE CHAIR OF THE BOARD. A Vice Chair of the Board shall have
such powers and duties as the Board of Directors may specify. During any
absence or disability to act of the Chairman of the Board, a Vice Chair of the
Board shall preside at all meetings of the Board of Directors and of the
stockholders and have and exercise his powers and duties.
<PAGE> 11
SECTION 7. SENIOR EXECUTIVE VICE PRESIDENTS, EXECUTIVE VICE PRESIDENTS,
EXECUTIVES, SENIOR VICE PRESIDENTS, VICE PRESIDENTS. Each Senior Executive
Vice President, Executive Vice President, Executive, Senior Vice President,
and Vice President shall have and perform such duties as the Chairman of the
Board, a Vice Chair of the Board or the President may delegate and is
authorized to accept trusts, execute contracts and agreements in relation to
trusts and loans, sign authentications and certificates in connection with
trusts and certificates of stock, and sign or countersign checks, drafts,
certificates of deposit and letters of credit and all similar instruments or
obligations issued by the Bank.
SECTION 8. ASSISTANT VICE PRESIDENTS. Each Assistant Vice President is
authorized, subject to the supervision and direction of the President or a
Vice President, to accept trusts, execute contracts and agreements in relation
to trusts and to sign authentications and certificates in connection with
trusts and certificates of stock; also to sign or countersign checks, drafts,
certificates of deposit and letters of credit and all similar instruments or
obligations issued by the Bank.
SECTION 9. CASHIER. The Cashier shall have charge and superintendence of the
operations of the Bank touching the deposit of money and commercial and
savings accounts, subject to the supervision and direction of the Chairman of
the Board, a Vice Chair of the Board, the President or a Vice President, and
is authorized to sign or countersign checks, drafts, certificates of deposit
and letters of credit and, as provided in Article V hereof, to sign
certificates representing stock of the Bank.
SECTION 10. SECRETARY. The Secretary shall act as secretary of the Board and
as secretary at meetings of the stockholders and, in general, shall have
charge of all records of the Bank relating to its organization and corporate
action and shall have power to certify the contents thereof.
SECTION 11. ASSISTANT SECRETARIES. Each Assistant Secretary is authorized,
subject to the supervision and direction of the President, a Vice President or
the Secretary, to accept trusts, execute contracts and agreements in relation
to trusts, to sign authentications and certificates in connection with trusts
and certificates of stock, and to certify the contents of all records of the
Bank, to the same extent as the Secretary; to sign or countersign checks,
drafts, certificates of deposit, letters of credit and, as provided in Article
V hereof, certificates representing the stock of the Bank.
SECTION 12. OTHER OFFICERS. All other officers shall perform such duties and
possess such powers as from time to time may be directed or delegated by the
Board of Directors, the Executive Committee, the Chairman of the Board, a Vice
Chair of the Board, the President or a Vice President.
SECTION 13. OTHER SIGNING AUTHORITY. In addition to the signing authorities
granted by or pursuant to the foregoing provisions of this Article III, the
Chairman of the Board, a Vice Chair of the Board, the President, any Senior
Executive Vice President, Executive Vice President, or Executive or any Senior
Vice President within the area of his assigned duties or responsibilities, may
designate from time to time in writing any officer or employee, either by name
or by title, to sign or execute any documents, instruments or contracts to
which the Bank is a party.
ARTICLE IV: SEAL
The Board shall provide a Seal for the Bank, which shall be in the charge of
the Secretary or any other officer designated by him or by the President or
the Executive Committee, such Seal or a facsimile thereof to be affixed to or
otherwise reproduced on certificates of stock and any other documents in
accordance with the directions of the Board, the Executive Committee, the
President, any Vice President or the Secretary.
<PAGE> 12
ARTICLE V: CAPITAL STOCK
SECTION 1. TRANSFER. Transfers of shares of stock of the Bank shall be made
upon the books of the Bank by the registered holder in person, or by attorney
duly authorized, on surrender of the certificate or certificates representing
such shares. The person in whose name shares of stock stand on the books of
the Bank shall be deemed to be the owner thereof for all purposes as regards
the Bank. All transfers of shares of stock in the Bank to a fiduciary,
including an executor, administrator, trustee, guardian, committee,
conservator, curator, tutor, custodian or nominee, and any transfer of shares
of stock of the Bank upon assignment by such fiduciary, shall be made by the
Bank under, and the Bank shall have the protections and rights with respect
thereto provided for by, an Act of the General Assembly of the State of
Illinois entitled "An Act relating to the transfer of securities to and by
fiduciaries and to repeal a part of an Act therein named", approved May 23,
1957.
SECTION 2. CERTIFICATES. All certificates representing stock of the Bank
shall be signed manually by the Chairman of the Board or the President or a
Vice President or the Cashier, and by the Secretary or an Assistant Secretary.
ARTICLE VI: LOANS ON STOCK OF THIS BANK
The Bank shall make no loans in whole or in part upon the stock of the Bank as
collateral.
ARTICLE VII: AUDITS
SECTION 1. SCOPE. The scope of and the procedures or tests to be followed in
the auditing division in examining the books, assets, liabilities and affairs
of the Bank and reporting thereon to the Board of Directors, and the extent
and manner of coordinating such examination and report into or with any audit
report by certified public accountants, shall be such as may be from time to
time prescribed by the Board of Directors or by an Examining Committee
appointed from time to time by the Board of Directors and consisting of at
least two directors who are not officers of the Bank.
SECTION 2. REPORTS. The Auditor, or the officer designated by the Board as
responsible for the supervision of the auditing division, shall report under
seal to the Examining Committee appointed by the Board of Directors and, if
none is appointed, to the Board of Directors, itself, on the audit program and
internal controls in each quarter of the year and shall appear at any time at
the request of the Board of Directors or the Executive Committee at any
regular or special meetings thereof and report on the results of examinations,
the soundness of condition of the Bank and any other pertinent information in
connection therewith. The Auditor, or officer designated by the Board as
responsible for the supervision of the auditing division, shall have
continuing responsibility to report promptly under seal to the Board of
Directors or the Executive Committee any material irregularities which in his
opinion are of sufficient importance to be brought to their attention before
his next quarterly report.
<PAGE> 13
ARTICLE VIII: INDEMNIFICATION
SECTION 1. APPLICABILITY. Every person now or heretofore or hereafter
serving as a director, officer or employee of the Bank or of a wholly owned
subsidiary of the Bank, and every officer or employee of the Bank or of any
such wholly owned subsidiary now, heretofore or hereafter serving as director
or officer of one or more other corporations or organizations, or as trustee,
executor, administrator, guardian or conservator or in a similar fiduciary
capacity, at the request of the Bank as evidenced by action of the Executive
Committee or the Board designating the situation as one entitled to the
benefit of this bylaw or to the benefit of a similar indemnifying resolution
of the Board, shall be indemnified or reimbursed by the Bank from and for
expenses, liabilities, fines, penalties and costs that may be imposed upon or
incurred by him, including by way of settlement, in connection with any
action, suit, or proceeding, civil or criminal, in which he may be or become a
party by reason of his being or having been such director, officer, trustee,
executor, administrator, guardian, conservator or other such fiduciary;
provided, however, that no such person shall be entitled to such indemnity or
reimbursement.
(a) in relation to matters as to which he shall be finally adjudged in an
action brought by the Bank directly or derivatively to be liable for breach of
a duty to or for nonpayment of a liability to the Bank; or
(b) in relation to matters included in an action, suit or proceeding of
the kind referred to in the foregoing subparagraph (a) but which is settled or
disposed of without final adjudication on the merits except and unless the
Board or, as the case may be, the stockholders, shall make the same findings
as are provided for in the following subparagraph (c) as a condition precedent
to such indemnity or reimbursement; or
(c) in relation to matters involved in an action, suit or proceeding
which is of a kind other than that referred to in the foregoing subparagraph
(a), unless such action, suit or proceeding is dismissed or otherwise disposed
of on the merits in favor of such person, or, if not so dismissed or disposed
of, unless the Board shall find that such person acted in good faith for a
purpose which he reasonably believed to be in the best interests of the Bank,
and in the case of criminal actions or proceedings, in addition had good
warrant to believe that his conduct was not unlawful.
SECTION 2. FINDINGS. The action by the Board called for in subparagraph (c)
of Section 1 hereof shall be at a meeting at which a quorum consisting of
directors who are not parties to such suit, action or proceeding is present;
and in taking such action no director involved shall be qualified to vote
thereon. In the absence of quorum, such finding shall nevertheless be
effective if made by resolution of the stockholders adopted at an annual
meeting or at a special meeting of the stockholders. The right of
indemnification or reimbursement provided for by this Article shall not be
exclusive and shall not affect any right to indemnification or reimbursement
which any director, officer or employee might otherwise have as a matter of
law.
The term "Bank" as used in this Article shall be deemed to include the Bank
and the predecessor bank of the same name, all with the same effect as if the
Bank and said predecessor had at all times been one and the same corporation.
SECTION 3. LEGAL EXPENSES. Expenses incurred by a director, officer or
employee in defending a civil or criminal action, suit or proceeding may be paid
by the Bank in advance of the final disposition of such action, suit or
proceeding as authorized by the Board of Directors in a specific case upon
receipt of an undertaking by or on behalf of the director, officer or employee
to repay such amount unless it shall ultimately be determined that he is
entitled to indemnification as provided in this Article VIII.
ARTICLE IX: MANAGEMENT SUCCESSION PROVISIONS
In the temporary absence of the Chairman of the Board, the Vice Chairs of the
Board and the President, certain Senior Executive Vice Presidents, Executive
Vice Presidents, Executives or Senior Vice Presidents shall have and exercise
all the powers and duties of the Chief Executive Officer until the Board of
Directors meets to provide for permanent succession, the order of precedence
having been set by the Board of Directors referring to this Article IX. The
provisions of this paragraph are, however, subject to the right of the
stockholder, the Board of Directors and of the Executive Committee to appoint
the presiding officer of their respective meetings.
ARTICLE X: AMENDMENT OR REPEAL
These bylaws, or any part hereof, may be amended, altered, changed, added to
or repealed, and others adopted in their place by the Board of Directors of
the Bank at any regular or special meeting.
I, D. L. Pomykala hereby certify that I am an
Assistant Secretary of Harris Trust and Savings
Bank; Chicago, Illinois, and that the foregoing is
a true and correct copy of the bylaws of this Bank
and that the same are in full force and effect
this 27th day of April, 1999.
/s/ D.L. Pomykala
----------------------------
Assistant Secretary
