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As filed with the Securities and Exchange Commission on August 6, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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HELLER FINANCIAL, INC.
(Exact name of registrant as specified in its charter)
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Delaware 36-1208070
(I.R.S. Employer Identification No.)
(State of Incorporation)
500 West Monroe Street, Chicago, Illinois 60661, (312) 441-7000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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DEBRA H. SNIDER, ESQ.
Executive Vice President, Chief Administrative Officer and General Counsel
Heller Financial, Inc.
500 West Monroe Street, Chicago, Illinois 60661, (312) 441-7000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copy to:
LAWRENCE D. LEVIN, ESQ.
MARK D. WOOD, ESQ.
Katten Muchin & Zavis
525 West Monroe Street, Suite 1600, Chicago, Illinois 60661, (312) 902-5200
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Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement.
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. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Amount Proposed maximum Proposed maximum Amount of
Title of Each Class of to be offering price aggregate registration
Securities to be Registered registered per share offering price(1) fee
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<S> <C> <C> <C> <C>
Debt Securities......................
Warrants to Purchase Debt
Securities..........................
Senior Preferred Stock, $0.01 par
value per share(3).................. (2) (2) $10,000,000,000 $2,780,000
Class A Common Stock, $0.25 par value
per share(3)........................
</TABLE>
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(1) The maximum aggregate offering price of debt securities, warrants to
purchase debt securities, senior preferred stock and class A common stock
registered hereunder shall not exceed $10,000,000,000.
(2) Not applicable pursuant to General Instruction II.D. of Form S-3 under the
Securities Act of 1933, as amended.
(3) In addition, the Registrant is registering senior preferred stock and
class A common stock that may be issued from time to time upon conversion
of convertible debt securities or convertible senior preferred stock.
Because this additional senior preferred stock and class A common stock is
issuable only upon the conversion of convertible debt securities or
convertible senior preferred stock, no registration fee is required with
respect to such senior preferred stock and class A common stock pursuant
to the provisions of Rule 457(i).
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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 the Registration Statement
shall become effective on such date as the Commission, acting pursuant to
Section 8(a), may determine.
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Prospectus
Heller Financial, Inc.
500 West Monroe Street
Chicago, Illinois 60661
(312) 441-7000
By this prospectus, we may periodically offer and issue any combination of
the following securities:
. unsecured debt securities consisting of debentures, notes and/or other
evidences of unsecured indebtedness, in one or more series;
. warrants to purchase unsecured debt securities;
. senior preferred stock, in one or more series; and
. class A common stock.
The total offering price of these securities will not exceed
$10,000,000,000. We will provide the specific terms of these securities in
supplements to this prospectus.
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You should carefully consider the risk factors beginning on page 3 of this
prospectus before you invest in our securities.
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Neither the SEC nor any state securities commission has approved these
securities or determined that this prospectus is accurate or complete. Any
representation to the contrary is a criminal offense.
The date of this prospectus is , 1999
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ABOUT THIS PROSPECTUS
This prospectus is part of a shelf registration statement we have filed with
the SEC. By using a shelf registration statement, we may sell, from time to
time and in one or more offerings, any combination of the securities described
in this prospectus. We will not sell more than $10,000,000,000 of securities
through these offerings.
In this prospectus, we provide you only with a general description of the
securities we may offer. Each time we sell securities, we will provide a
prospectus supplement that contains specific information about the terms of
those securities. In the prospectus supplement, we may also update information
contained in this prospectus. You should read both this prospectus and any
prospectus supplement together with the additional information described below
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. You may read and copy any document we file at the
following locations:
. the public reference room of the SEC, Room 1024, Judiciary Plaza, 450
Fifth Street N.W., Washington, DC 20549;
. the public reference facilities at the SEC's regional offices at Seven
World Trade Center, 13th Floor, New York, New York 10048 or Citicorp
Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661;
. the offices of the New York Stock Exchange, 20 Broad Street, New York,
New York 10005; or
. the offices of the Chicago Stock Exchange, One Financial Plaza, 440
South LaSalle Street, Chicago, Illinois 60605.
Some of these locations may charge a modest fee for copies. You may obtain
information on the operation of the SEC public reference room in Washington,
D.C. by calling the SEC at 1-800-SEC-0330. In addition, you may access any
document we file with the SEC on its web site at http://www.sec.gov.
This prospectus is part of a registration statement we have filed with the
SEC. The SEC allows us to incorporate documents by reference. This means that
we can disclose important information by referring you to another document we
file separately with the SEC. The information incorporated by reference is
considered to be part of this prospectus, except for any information superseded
by information in this prospectus. The information we file later with the SEC
will automatically update and supersede the information contained in this
prospectus or incorporated by reference from earlier filings. We incorporate by
reference the documents listed below and any future filings we make with the
SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934 until we sell all of the securities offered by this prospectus:
. the Annual Report on Form 10-K for our fiscal year ended December 31,
1998, as amended by the Form 10-K/A we filed March 12, 1999;
. the Quarterly Reports on Form 10-Q for our fiscal quarters ended March
31, 1999 and June 30, 1999;
. the two Current Reports on Form 8-K dated January 20, 1999, the Current
Report on Form 8-K dated April 20, 1999, as amended by the Form 8-K/A we
filed April 21, 1999, and the Current Reports on Form 8-K dated April
20, 1999, April 22, 1999, April 23, 1999, July 12, 1999, July 20, 1999,
July 21, 1999, July 23, 1999 and July 28, 1999; and
. the description of our class A common stock contained in our
Registration Statements on Form 8-A filed April 1, 1998 and May 7, 1998
under Section 12 of the Securities Exchange Act and all amendments and
reports that we file to update the description.
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We will provide a copy of the information we incorporate by reference in
this prospectus to you at no cost. To request a copy of any or all of this
information, you should write or telephone us at Heller Financial, Inc.,
Attention: Treasurer, 500 West Monroe Street, Chicago, Illinois 60661, (312)
441-7000.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, the information incorporated by reference in it and any
prospectus supplement includes or will include "forward-looking statements," as
defined in Section 27A of the Securities Act of 1933 and Section 21E of the
Securities Exchange Act, that reflect our current expectations regarding our
future results of operations, performance and achievements. We intend for these
forward-looking statements to be covered by the safe harbor provisions of the
Private Securities Litigation Reform Act of 1995. We have tried to identify
these forward-looking statements by using words such as "anticipates,"
"believes," "estimates," "expects," "plans," "intends" and similar expressions.
These forward-looking statements are based on information currently available
to us and are subject to risks, uncertainties and contingencies which could
cause our actual results, performance or achievements for 1999 and beyond to
differ materially from those expressed in, or implied by these statements.
These risks, uncertainties and contingencies include, but are not limited to,
the risk factors described below and in any prospectus supplement.
You should not place any undue reliance on any forward-looking statements.
Except as required by federal securities laws, we assume no obligation to
update publicly any forward-looking statements, whether as a result of new
information, future events, changed circumstances or otherwise.
RISK FACTORS
In addition to the other information contained in this prospectus or any
prospectus supplement, you should carefully consider the following risk factors
before you invest in our securities.
Various Economic Factors Could Adversely Affect Our Business
An Economic Recession or Downturn Could Adversely Affect Demand for Our
Products, Increase Our Nonearning Assets and Writedowns and Cause a
Downgrading of Our Credit Ratings
Unfavorable economic conditions may prevent us from maintaining our new
business origination volume and the credit quality of new business we do
originate at previous levels. In an economic recession or other adverse
economic environment, we may be unable to achieve growth in finance
receivables. Further, an economic downturn or slowdown in specific industries
that we target could adversely affect demand for our products and growth in our
finance receivables. For example:
. a downturn in the textile and apparel markets could adversely affect our
U.S. factoring business, which represented 9% of our total revenues in
1998. The textile and apparel market constituted 32% of our U.S.
factoring business revenues in 1998;
. a downturn in the commercial real estate markets, which are cyclical and
often affected by changes in tax regulations and interest rates, could
adversely affect our real estate finance activities. Commercial real
estate finance assets represented 15% of our portfolio of lending assets
and investments in 1998; and
. volatility in the capital markets could adversely affect the net gains
on our equity investments and the timing and profitability of our
securitization transactions. Net gains on our equity investments
represented 4% of our total revenues in 1998.
Unfavorable economic conditions could also cause an increase in our
nonearning assets and writedowns because debtors may be unable to meet their
payment obligations or other contractual terms. For example, our nonearning
assets and writedowns increased during the U.S. economic recession in the early
1990's due to the
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adverse impact of the recession on our pre-1990 corporate and real estate
finance portfolios. Our allowance for losses of receivables may provide
insufficient protection against potential writedowns in our portfolio. Adverse
economic conditions could also hinder our ability to realize the value of
collateral securing our finance receivables or cause declines in the value of
equipment subject to lease agreements. See "--Our Allowance for Losses of
Receivables May Be Inadequate to Protect Against Losses."
Furthermore, an economic recession or downturn could cause a downgrading of
our credit ratings. This could:
. increase our funding costs;
. decrease our net interest income;
. limit our access to the capital markets; and
. cause lenders under our existing credit facilities to refuse to extend
the credit facilities after their expiration.
Fluctuations in Interest Rates Could Adversely Affect Our Net Interest Income
and Our Ability to Originate New Finance Receivables
Our operating results and cash flow depend to a great extent upon our level
of net interest income, which is the difference between total interest income
earned on earning assets and total interest expense paid on interest-bearing
liabilities. The following factors could adversely affect our net interest
income:
. a decrease in the volume of our earning assets;
. a decrease in the interest rates earned on our earning assets;
. an adverse change in the mix of our earning assets;
. an increase in the volume of our interest-bearing liabilities; and
. an increase in the interest rates paid on our interest-bearing
liabilities.
A significant increase in market interest rates, or, in the case of floating
rate borrowers, the perception that an increase may occur, could adversely
affect our ability to originate new finance receivables and our ability to
grow. Our nonearning assets and writedowns could also increase because our
floating-rate borrowers may be unable to meet higher payment obligations.
Conversely, a decrease in market interest rates could cause an acceleration in
the prepayment of owned and managed finance receivables. In addition, if there
are changes in (1) market interest rates, (2) the relationship between short-
and long-term interest rates or (3) the relationship between different interest
rate indices that affect the interest rates earned on interest-earning assets
differently than the interest paid on interest-bearing liabilities, we may
experience an increase in interest expense relative to interest income.
Fluctuations in Foreign Currency Exchange Rates and Other International
Factors Could Adversely Affect Our Operations and Our Operating Results from
Our International Financing and Factoring
Foreign currency exchange rate fluctuations, particularly in European
currencies, could materially adversely affect the revenues and income we
generate from our international asset-based financing and factoring operations.
Our operations may be adversely affected by other factors inherent in
conducting international business, including the following:
. increased international competition;
. political, economic and financial market instability;
. changes in regulatory requirements and taxes; and
. the unreliability of judicial processes.
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In addition, instability or adverse economic conditions in international
markets could adversely affect the businesses of our international or domestic
customers. This could adversely affect their demand for our products.
Our Ability to Raise Capital and Our Access to Funds May Be Limited
We depend in large part upon commercial paper borrowings and issuances of
medium-term notes and other debt securities for funds. If we suffer a downgrade
in our credit rating, we could incur increased borrowing costs and have greater
difficulty accessing the commercial paper market and the public and private
debt markets. In that event, our other sources of funds, including our bank
credit and receivable sale facilities, cash flow from operations and portfolio
liquidations, may not provide us with adequate liquidity. In addition, one of
our committed bank credit facilities expires in October 1999 and another
expires in April 2000, either of which may not be renewed. Thus, a downgrade in
our credit ratings could materially adversely affect our business, financial
position or results of operations.
Fuji Bank Can Control Our Business and Affairs
The Fuji Bank, Limited holds all of our outstanding class B common stock,
which currently represents 77% of the voting power and 52% of the economic
interest of our outstanding common stock. As long as Fuji Bank beneficially
owns more than 50% of the voting power of our common stock, Fuji Bank can elect
all of the members of our board of directors and can control our business and
affairs, including decisions regarding:
. mergers or other business combinations;
. acquisitions or other dispositions of assets;
. incurrence of indebtedness;
. issuance of equity securities, including additional shares of our class
A common stock; and
. payment of dividends.
As long as Fuji Bank beneficially owns more than 50% of the voting power of
our common stock, Fuji Bank can also:
. determine matters submitted to a vote of our stockholders without the
consent of other stockholders;
. prevent or cause a change of control of us; and
. take other actions that may be favorable to Fuji Bank but not to us or
the holders of our class A common stock.
Fuji Bank's control may result in various conflicts of interest between Fuji
Bank and us or between Fuji Bank and the holders of our class A common stock.
Some of our directors and officers own Fuji Bank stock and/or serve as a
director, officer or other employee of Fuji Bank. These people may be faced
with decisions that have different implications for Fuji Bank, on the one hand,
and us or the holders of our class A common stock, on the other hand, which
could create, or appear to create, potential conflicts of interest.
Our Allowance for Losses of Receivables May Be Inadequate to Protect Against
Losses
Our allowance for losses of receivables may be inadequate to protect against
losses in our receivables portfolio due to:
. misjudgment by our management of the potential losses in our receivables
portfolio;
. unanticipated adverse changes in the economy generally; or
. discrete events that adversely affect specific customers, industries or
markets.
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If our allowance for losses of receivables is insufficient to cover losses
in our receivables portfolio, our business, financial position or results of
operations could be materially adversely affected.
Our Quarterly Operating Results May Vary Significantly
Our results of operations may vary significantly from quarter to quarter
because of the timing of certain events and other factors, including the other
risk factors listed in this prospectus and any prospectus supplement. For
example, if we realize a gain on a securitization or net investments in a
particular quarter, our operating revenues and net income may be higher in that
quarter as compared to other quarters in the same fiscal year. Therefore, you
should not rely on our results of operations during any particular quarter as
an indication of our results for a full year or any other quarter. In some
periods, our results of operations may fall below the expectations of public
market analysts and investors. Any shortfall of this kind, even if minor, could
cause the market price of our class A common stock to decline.
We May Be Unable to Attract and Retain Qualified Personnel
We may be unable to attract and retain qualified management, sales and
credit personnel. We have experienced intensified demand for qualified
personnel with significant industry experience due to the strength of the U.S.
economy and the commercial finance market and enhanced competition within the
commercial finance market. If we have any difficulty in attracting and
retaining qualified personnel on acceptable terms, our business, financial
position or operating results could be materially adversely affected.
We Are Subject to Intense Competition in the Commercial Finance Market and
Could Lose Market Share
The commercial finance market is very competitive. If we are unwilling to
match our competitors' pricing, terms or transaction structures, we could lose
market share. To the extent we do match our competitors' pricing, terms or
structure, we may experience decreased net interest income and increased risk
of credit losses.
We have experienced intensified competition from traditional competitors and
new market entrants in recent years due to:
. a strong economy;
. marketplace liquidity;
. increasing recognition of the attractiveness of the commercial finance
market;
. a surge in the consolidation activity in the commercial and investment
banking industries; and
. the rapid expansion of the securitization markets.
Some of our competitors are larger than we are and may have access to
capital at a lower cost than we do. Moreover, some of our competitors may
engage in certain activities that are prohibited to us because they are not
affiliated with bank holding companies and, therefore, are not subject to the
same extensive federal regulations that govern bank holding companies.
We Are Subject to Extensive Regulation
Generally, we are subject to extensive regulation and supervision in the
jurisdictions in which we operate. The regulations and supervision are
primarily for the benefit of our customers, not our investors, and may
adversely affect our discretion in operating our business and limit our ability
to derive profits from our business. For example, state laws often establish
maximum allowable finance charges for certain commercial loans.
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If we violate applicable statutes or regulations, our applicable license or
registration may be suspended or revoked in that jurisdiction and we may be
subject to civil fines and criminal penalties. Future legislation, regulations,
orders, amendments or interpretations could materially adversely affect our
business, financial position and operating results.
Because we are a subsidiary of Fuji Bank, we and our activities are subject
to the Bank Holding Company Act of 1956 and related regulations. The Bank
Holding Company Act limits our ability to engage in new activities or to
acquire securities or assets of another company. In addition, Fuji Bank, as a
Japanese bank, is required to comply with the Japanese Banking Law, as amended
in 1998. The Banking Law limits the type of subsidiaries in which a Japanese
bank may invest to those that conduct "eligible businesses." A subsidiary is
defined as an entity in which there is ownership of more than 50% of the voting
shares. Eligible businesses generally include banks, securities firms,
insurance companies, administrative businesses and financial companies.
Establishment of any subsidiary requires the prior approval of the Financial
Supervisory Agency, an agency of the Prime Minister's Office. Non-eligible
business investments are permitted if acquired as collateral, although
disposition of such businesses is required within one year.
Our Ability to Pay Dividends May Be Limited
We are restricted in our ability to pay dividends to the holders of our
common stock by the terms of our outstanding preferred stock and our credit
agreements. In the future, we may agree to further restrictions on our ability
to pay dividends. In addition, to maintain our credit rating, we may be limited
in our ability to pay dividends so that we can maintain an appropriate level of
debt. See "Description of the Securities We May Offer--Description of Capital
Stock--Common Stock--Dividends."
Our or Third Parties' Failure to Be Year 2000 Compliant Could Adversely Affect
Our Business
We have not fully completed our assessment and remediation of our
information technology systems or those of our material vendors and borrowers
to ensure that they will function properly in 2000. We have also not fully
completed implementing our year 2000 contingency planning. We are currently
scheduled to complete our assessment, remediation and implementation of our
contingency planning during 1999. However, if we fall behind schedule or do not
successfully address year 2000 risks or if third parties with whom we have
material relationships do not appropriately address their own year 2000
compliance issues, our business, financial position and operating results could
be materially adversely affected.
Future Sales of Our Common Stock By Fuji Bank Could Adversely Affect Our Stock
Price
The 51,050,000 shares of our class B common stock beneficially owned by Fuji
Bank are convertible into an equal number of shares of our class A common
stock. Assuming the conversion of all these shares of our class B common stock
into our class A common stock, these converted shares would represent
approximately 52% of the then-outstanding shares of our class A common stock.
Therefore, if Fuji bank sells a substantial number of shares of our common
stock, or if the market perceives that these sales could occur, the prevailing
market prices for our class A common stock could be adversely affected. Fuji
Bank may not continue to maintain its current holdings of our common stock.
We Have Provisions in Our Charter and Bylaws that Could Discourage Takeover
Bids or the Removal of Our Management
We have provisions in our charter and bylaws that may delay or prevent
unsolicited takeover bids from third parties or the removal of incumbent
management. These provisions have no practical effect while Fuji Bank controls
us, but, in the event Fuji Bank's voting power decreases to less than 50%, the
provisions may deprive our stockholders of an opportunity to sell their shares
at a premium over prevailing market prices. See "Description of the Securities
We May Offer--Description of Capital Stock--Certain Charter and Bylaw
Provisions--Provisions that May Have an Anti-Takeover Effect."
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THE COMPANY
General
We are a leading diversified commercial financial services company. We
provide a broad array of financial products and services to mid-sized and small
businesses in the U.S. and select international markets.
Primary Business Segments
We deliver our products and services principally through two business
segments:
. Domestic Commercial Finance; and
. International Factoring and Asset Based Finance.
Domestic Business
Our Domestic Commercial Finance segment is made up of the following six
business units:
. Corporate Finance, which provides collateralized cash flow and asset
based lending;
. Real Estate Finance, which primarily provides secured real estate
financing;
. Leasing Services, which provides debt and lease financing of small and
large ticket equipment sourced directly or through manufacturers,
distributors and dealers;
. Small Business Finance, which provides financing to small businesses,
primarily under U.S. SBA loan programs;
. Commercial Services, which provides factoring and receivables management
services; and
. Healthcare Finance, which provides asset based and related financing to
healthcare providers, with a primary focus on long-term care, hospitals
and physician practices.
International Business
Our International Factoring and Asset Based Finance segment, known as Heller
International Group, provides factoring services and financings secured
primarily by receivables, inventory and equipment. It does so through wholly-
owned subsidiaries and joint ventures which provide financing to small and mid-
sized companies primarily in Europe, but also in Asia and Latin America.
Market Position
We concentrate primarily on senior secured lending, with 87% of our lending
assets and investments at December 31, 1998 being made on that basis. To a more
limited extent, we make subordinated loans and invest in select debt and equity
instruments.
We believe that, based upon information as of December 31, 1998, we are the
largest factoring operation worldwide in terms of factoring volume. Our
subsidiary, Factofrance-Heller, is the largest factoring operation in France
and our Commercial Services unit is the fourth largest factoring operation in
the United States. We believe we are the third largest originator of U.S. SBA
7(a) guaranteed small business loans, with leadership positions in California,
Texas, Florida and Illinois. We are among the largest lenders to private
equity-sponsored companies in the U.S. middle market. Additionally, we are a
recognized leader in real estate finance, vacation ownership lending, vendor
finance and middle-market equipment finance and leasing in the United States.
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We have built our portfolio through:
. effective asset origination capabilities;
. effective portfolio management;
. disciplined underwriting and credit approval processes; and
. to a lesser extent, acquisitions.
Our business groups are able to manage asset, client and industry
concentrations and enhance profitability by distributing assets through
securitizations, syndications and loan sales.
Keep Well Agreement with Fuji Bank
We have a keep well agreement with Fuji Bank. Under the keep well agreement:
. we, Fuji Bank or any of its affiliates may only sell or dispose of our
common stock if, after the sale or disposition, Fuji Bank and its
subsidiaries would still hold more than 50% of the combined voting power
of our outstanding common stock;
. if necessary, Fuji Bank will prevent our stockholders' equity from
falling below $500 million by purchasing shares of our NW preferred
stock from us. See "Description of the Securities We May Offer--
Description of Capital Stock--Existing Preferred Stock--NW Preferred
Stock;"
. if necessary, Fuji Bank will help us meet our payment obligations on our
commercial paper by lending us up to $500 million;
. we must maintain unused short-term lines of credit, asset sales
facilities and committed credit facilities in an amount approximately
equal to 75% of the amount of our outstanding commercial paper
obligations; and
. our commercial paper obligations and our other debt instruments are
solely our own obligations; Fuji Bank does not guarantee the payment of
those obligations in the keep well agreement.
No purchases of our NW preferred stock or loans have been made by Fuji Bank
under the keep well agreement.
We or Fuji Bank may not terminate the keep well agreement before the earlier
of (1) December 31, 2007 or (2) the date on which we receive written
certifications from Moody's Investors Service, Inc. and Standard & Poor's
Rating Services that, upon termination of the agreement, the ratings on our
senior unsecured indebtedness without the support provided by the agreement
will be no lower than they were with the support of the agreement. However, in
no event can we or Fuji Bank terminate the agreement before December 31, 2002.
In addition, while our series A preferred stock or series C preferred stock are
outstanding, we or Fuji Bank may not terminate the keep well agreement unless
Moody's and Standard & Poor's issue written certification about the ratings of
that preferred stock. We and Fuji Bank may from time to time amend certain
provisions of the agreement.
USE OF PROCEEDS
Unless we indicate otherwise in a prospectus supplement, we will add the net
proceeds from any offering of these securities to our general funds. As part of
our general funds, we may use the proceeds for the repayment of short-term
borrowings and other general corporate purposes. We may also use the proceeds
to fund our acquisition of other products, services or businesses.
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DESCRIPTION OF THE SECURITIES WE MAY OFFER
We may periodically offer and issue any combination of the following
securities:
. unsecured debt securities consisting of debentures, notes and/or other
evidences of unsecured indebtedness, in one or more series;
. warrants to purchase unsecured debt securities;
. senior preferred stock, in one or more series; and
. class A common stock.
We will not sell more than $10,000,000,000 of securities through these
offerings.
We have summarized below the material and general terms of the various
securities that we may offer. In the prospectus supplement relating to any
particular securities we offer, we will describe the specific terms of the
securities, which may be in addition to or different from the general terms
summarized below. In the summaries in this prospectus and in any prospectus
supplement, we do not and will not describe every aspect of the securities.
These summaries are subject to, and qualified in their entirety by reference
to, all applicable provisions of the documents relating to the securities
offered, as described below.
Description of Debt Securities
The debt securities will be our unsecured general obligations that are not
guaranteed by Fuji Bank. The debt securities will be:
. senior debt securities issued under an indenture dated as of September
1, 1995, as amended, between us and State Street Bank and Trust Company,
as trustee;
. subordinated debt securities issued under an indenture dated as of
September 1, 1995, as amended, between us and State Street Bank and
Trust Company, as trustee; or
. junior subordinated debt securities issued under an indenture dated as
of September 1, 1995, as amended, between us and State Street Bank and
Trust Company, as trustee.
We have summarized below the general terms and provisions of the indentures.
We have filed copies of the indentures with the SEC. We will describe the
particular terms of each issue of debt securities, as well as any modifications
or additions to the general terms of the indentures described below, in a
prospectus supplement. Accordingly, for a description of the terms of a
particular issue of debt securities, you should read the summary below, the
applicable prospectus supplement and the applicable indenture.
Provisions Applicable to All Debt Securities
General
The indentures do not limit the aggregate principal amount of debt
securities that we may issue. We may issue debt securities in one or more
series, in any currency or currency unit and in any principal amounts. Each
indenture may have more than one trustee. Trustees may resign or be removed
with respect to one or more series of debt securities issued under each
indenture.
If we offer debt securities, a prospectus supplement will describe the
following terms:
. the title and type of the debt securities;
. the aggregate principal amount of the debt securities and the percentage
of the principal amount for which the debt securities will be issued;
. the date or dates on which the principal of, and any interest and
premium on, the debt securities will be payable;
. the interest rate or rates per annum, if any, which the debt securities
will bear;
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. if payments are based on an index, the manner in which the principal of,
and any interest and premium on, the debt securities is to be
determined;
. if other than U.S. dollars, the currency or currency units for which the
debt securities may be purchased and in which the principal and any
interest and premium will be payable;
. if other than denominations of $1,000 and any multiple of $1,000, the
denominations in which we will offer the debt securities;
. the place or places at which the principal of, and any interest and
premium on, the debt securities will be payable;
. the terms and conditions of our right, if any, to redeem the debt
securities;
. the terms and conditions of your right, if any, to cause us to repay the
debt securities;
. the terms and conditions of your right, if any, to convert the debt
securities into, or exchange the debt securities for, our other
securities;
. any additions to, or changes in, the events of default described below;
. any additions to, or changes in, our covenants;
. the material tax consequences under U.S. law of owning the debt
securities, including provisions for debt securities (1) sold at a
discount below their face amount, (2) bearing no interest or (3) bearing
interest at a rate which is below market rates at the time of issuance;
. the restrictions, elections, tax consequences, specific terms and other
relevant information with respect to (1) debt securities sold for any
foreign currency or foreign currency units or (2) debt securities for
which the principal and any interest and premium are payable in any
foreign currency or foreign currency units;
. the securities exchange or market on which the debt securities will be
listed;
. any obligation that we may have under Rule 14e-1 of the Securities
Exchange Act and any other tender offer rules of the Securities Exchange
Act, with respect to our repurchase of debt securities at the holder's
option;
. whether the debt securities will be issued in registered or bearer form,
with or without coupons;
. whether we will offer the debt securities, in whole or in part, in the
form of global securities, the depositary for the global security and
the specific depositary arrangement with respect to the debt securities;
and
. any other terms of the debt securities that are additional to, and not
inconsistent with, those in the applicable indenture.
We may offer debt securities that have principal and/or interest indexed to
one or more values of currencies, including exchange rates between currencies,
commodities or interest rate indices. If you invest in these debt securities,
you may be subject to significant risks that you would not be subject to if you
invested in conventional fixed-rate debt securities. For example:
. debt securities that are indexed as to interest rate may result in an
interest rate that is less than that payable on a conventional fixed-
rate debt security issued at the same time, and may result in no
interest being paid; and
. debt securities that are indexed as to principal amount may result in a
principal amount payable at maturity that is less than the original
purchase price of the debt securities, and may result in no principal
being paid.
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The value of the applicable currency, commodity or interest rate index
depends on a number of interrelated factors, including economic, financial and
political events over which we have no control, and cannot be predicted based
on historical performance. If the formula used to determine the principal
amount or interest payable with respect to the debt securities contains a
multiple or leverage factor, the effect of any change in the applicable
currency, commodity or interest rate index will be increased. In addition, many
factors that are independent of our creditworthiness and the value of the
applicable currency, commodity or interest rate index affect the secondary
market for indexed debt securities, including:
. the volatility of the applicable currency, commodity or interest rate
index;
. the time remaining to maturity of the debt securities;
. the amount of debt securities outstanding; and
. market interest rates.
Accordingly, you should consult your own financial and legal advisors about the
risks of an investment in indexed debt securities with respect to your
particular circumstances.
Restrictions on Liens
Under the indentures, we may not, and we may not permit any restricted
subsidiary to, create, incur or assume any lien on any of our property or any
restricted subsidiary's property to secure indebtedness for money borrowed,
incurred, issued, assumed or guaranteed by us or any restricted subsidiary,
unless the lien:
. equally and ratably secures the debt securities and indebtedness,
subject in the case of subordinated debt or junior subordinated debt to
subordination with respect to rights of payment;
. is on property or shares of stock of a corporation at the time it merges
into or consolidates with us or a restricted subsidiary or becomes a
restricted subsidiary;
. is on property at the time it was acquired by us or a restricted
subsidiary;
. secures indebtedness incurred to finance all or part of a purchase price
or cost of construction of our property or a restricted subsidiary's
property;
. secures indebtedness of a restricted subsidiary that is owed to us or
another restricted subsidiary;
. is on property of a person at the time substantially all of that
person's assets are transferred or leased to us or a restricted
subsidiary;
. is in favor of the government and is for taxes or assessments or secures
payments under a contract or statute;
. arises out of a judgment, decree or other court order or is in
connection with other proceedings;
. is on our receivables or cash as a basis for the issuance of bankers'
acceptances or letters of credit in connection with the financing of
customers' operations by us or a restricted subsidiary;
. is on property, or related receivables, acquired by us or a restricted
subsidiary by repossession, foreclosure or like proceedings and secures
indebtedness to finance all or part of the cost of maintenance,
improvement or construction of the property;
. is created in favor of the SBA on property owned by a restricted
subsidiary organized as a small business investment company;
. extends, renews or replaces a lien described above; or
. secures our indebtedness and indebtedness of our restricted subsidiaries
and the sum of that indebtedness and the other indebtedness of us and
our restricted subsidiaries secured by liens on our property and our
restricted subsidiaries' property, excluding indebtedness secured by
liens described
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above or existing as of the date of the applicable indenture, does not
exceed 10% of our consolidated net tangible assets.
We do not have to comply with the foregoing restrictions on liens if the
holders of a majority in principal amount of debt securities who are affected
by the imposition of the applicable lien waive compliance either generally or
in that instance.
Restrictions on Amount of Debt
Under the indentures, we may incur unlimited amounts of senior debt,
subordinated debt and junior subordinated debt. However, under other
indentures, we have agreed not to permit the aggregate principal amount of all
debt reflected on our consolidated balance sheets to exceed ten times our
consolidated stockholder's equity. The other indentures are of varying terms,
the longest of which is currently scheduled to expire on May 15, 2002. We may
terminate or amend these restrictions in the other indentures prior to that
date.
Mergers, Consolidations and Transfers of Assets
Under the indentures, we may not consolidate with, or merge into, any other
corporation or convey, transfer or lease most or all of our property and
assets to any person, unless:
. the corporation formed by the consolidation, the corporation into which
we merge or the person who acquires most or all of our property and
assets is organized and existing under the laws of a U.S. jurisdiction
and agrees to assume the payment of the principal of, and any interest
and premium on, the debt securities and the performance of covenants in
the applicable indenture;
. the transaction will not result in the occurrence and continuation of an
event of default or an event which after notice and/or lapse of time
would become an event of default; and
. we satisfy other conditions listed in the applicable indenture.
We will be discharged from all of our obligations and covenants under the
applicable indenture and the debt securities if we engage in a merger,
consolidation or transfer of assets that satisfies all of these conditions.
Payment and Transfer
We will pay principal of, and any interest and premium on, fully registered
debt securities without coupons at the corporate trust office of the trustee
or at any other office that we maintain for that purpose, except that we may
pay interest by check mailed to the registered holders of these debt
securities at the close of business on the day or days specified in the
applicable prospectus supplement. Unless limited in the indenture, fully
registered debt securities may be transferred or exchanged at the trustee's
corporate trust office or at any other office we maintain for that purpose,
without payment of any service charge except for incidental taxes or
governmental charges. With respect to other forms of debt securities, we will
pay principal and any interest and premium and holders may transfer or
exchange these debt securities at the place or places and on the terms that we
specify in the applicable prospectus supplement.
Book-Entry, Delivery and Form
We may offer debt securities represented by one or more certificates in
registered, global form. We will (1) deposit the global securities
representing the debt securities with, and on behalf of, The Depository Trust
Company (DTC) in New York, New York or a successor depositary that we appoint
and (2) register the global securities in the name of the depositary or its
nominee.
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DTC has advised us that it is a:
. limited-purpose trust company organized under the laws of the State of
New York;
. banking organization within the meaning of the laws of the State of New
York;
. member of the Federal Reserve System;
. clearing corporation within the meaning of the New York Uniform
Commercial Code; and
. clearing agency registered pursuant to the provisions Section 17A of the
Securities Exchange Act.
DTC was created to hold securities of its participants and to facilitate the
clearance and settlement of securities transactions among its participants
through electronic book-entry changes in their accounts, thereby eliminating
the need for physical movement of securities certificates. DTC's participants
include securities brokers and dealers, banks, trust companies, clearing
corporations and other organizations. Banks, brokers, dealers and trust
companies that clear through or maintain a custodial relationship with a
participant also have access to DTC's book-entry system.
Only participants and persons who hold interests through participants may
own beneficial interests in debt securities represented by global securities.
Upon deposit of the global securities, the depositary will credit, on its book-
entry registration and transfer system, the accounts of the participants
designated by the dealers, underwriters or agents involved in the distribution
with the principal amounts of the global securities beneficially owned by the
participants. The records of the depositary will show ownership and effect the
transfer of ownership of global securities by participants. The records of
participants will show ownership and effect the transfer of ownership of global
securities by persons holding through them. Therefore, if you are required by
state law to take physical delivery of securities in definitive form, you may
not be able to own, transfer or pledge beneficial interests in global
securities. In addition, the lack of a physical certificate evidencing a
person's beneficial interest in debt securities represented by a global
security may limit your ability to pledge the interest to a person or entity
who does not participate in the depositary's system.
So long as the depositary or its nominee is the registered owner of a global
security, it will be considered the sole owner and holder of the related debt
securities for all purposes under the applicable indenture. Except as set forth
below, if you own a beneficial interest in debt securities represented by
global securities, you will not:
. be entitled to have the debt securities registered in your name;
. receive or be entitled to receive physical delivery of a certificate in
definitive form representing the debt securities; or
. be considered the owner or holder of the debt securities under the
applicable indenture for any purpose, including with respect to the
giving of any directions, approvals or instructions to the trustee.
Each person owning a beneficial interest in a global security must rely on
the procedures of the depositary or, if that person is not a participant, the
procedures of the participant through which that person holds its interest, to
exercise the rights of a holder under the applicable indenture. We understand
that, under existing industry practice, when a beneficial owner of a global
security wants to give any notice or take any action that a registered holder
is entitled to take, at our request or under the applicable indenture, the
depositary will authorize the participant to give the notice or take the
action, and the participant will authorize its beneficial owners to give the
notice or take the action. Accordingly, we and the trustee will treat as a
holder anyone designated as such in writing by the depositary for purposes of
obtaining any consents or directions required under the indenture.
We will pay the principal of, and any interest and premium on, debt
securities represented by global securities through the trustee or a paying
agent to the depositary or its nominee, as the registered holder of the global
securities. We expect the depositary or its nominee, upon receipt of any
payments, to immediately credit
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each participant's account with payments in amounts proportionate to that
participant's beneficial interest as shown on the records of the depositary or
its nominee. We also expect each participant to pay each owner of beneficial
interests in debt securities represented by global securities held through that
participant in accordance with standing customer instructions and customary
practices. These payments will be the responsibility of the participants.
We will exchange debt securities represented by a global security for
certificated securities in definitive form only if:
. the depositary notifies us that it is unwilling or unable to continue as
depositary for the global security or if at any time it ceases to be a
clearing agency registered under the Securities Exchange Act;
. we decide at any time not to have the debt securities represented by a
global security and so notify the trustee; or
. an event of default has occurred and is continuing with respect to the
debt securities.
If there is an exchange, we will issue certificated securities in authorized
denominations and registered in the names the depositary directs.
We will not, and the trustee and paying agent will not, assume any
responsibility or liability for any aspect of the records relating to, payments
made on account of or actions taken with respect to the beneficial ownership
interests in debt securities represented by global securities, or for any other
aspect of the relationship between the depositary and its participants or
between the participants and the owners of beneficial interests. We, the
trustee and any paying agent may conclusively rely on instructions from the
depositary for all purposes. We obtained the above information about the
depositary and its book-entry system from sources we believe are reliable, but
we take no responsibility for the accuracy of the information.
Same-Day Settlement
Underwriters, dealers or agents may make settlement for debt securities in
immediately available funds. We may make all payments of principal and any
interest in immediately available funds. If the debt securities are subject to
settlement in immediately available funds, the depositary will trade them in
its same-day funds settlement system until maturity and secondary market
trading activity will require the depositary to settle in immediately available
funds rather than in the traditional clearinghouse or next-day funds. We do not
know what effect, if any, this requirement may have on the secondary trading
activity of the debt securities.
Events of Default, Notice and Waiver
Each indenture provides that the following events are events of default with
respect to any series of the debt securities:
. failure to pay the principal of, and any premium on, any debt security
of that series;
. failure to pay any installment of interest on any debt security of that
series for 30 days after becoming due;
. failure to perform any other covenant in the applicable indenture for 60
days after being given written notice;
. any event of default with respect to another series of debt securities
issued under the applicable indenture;
. a default under any (1) bond, debenture, note or other evidence of
indebtedness for money that we borrowed, issued, assumed or guaranteed
with unpaid principal over $2,000,000 or (2) mortgage, indenture or
instrument under which we may issue, secure or evidence any indebtedness
for money that we borrowed that caused another series of issued debt
securities or such indebtedness to become
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due and payable prior to maturity, without discharge of such issued debt
securities or indebtedness or rescission of the acceleration for 60 days
after we receive written notice from the trustee or the holders of at
least 25% in aggregate principal amount of the outstanding series of
debt securities in default requesting discharge or rescission, unless we
contest the default in good faith after that time;
. bankruptcy, insolvency, reorganization or court appointment of a
receiver, liquidator or trustee; and
. any other event of default described in the resolution of our board of
directors establishing the series of debt securities or in the
supplemental indenture under which we issue the series of debt
securities.
An event of default for a particular series of debt securities does not
necessarily constitute an event of default for any other series of debt
securities issued under an indenture. We will disclose any additions to, or
changes in, the events of default in the applicable prospectus supplement.
The trustee must give notice to the holders of any series of debt
securities of any event of default with respect to that series of debt
securities that it knows about within 90 days of the event, unless the default
has been cured or waived or the trustee determines in good faith, except with
respect to a default in the payment of principal, interest or premium, that it
is in the best interest of the holders to withhold the notice. If an event of
default for any series of debt securities occurs and is continuing, the
trustee or the holders of at least 25% in aggregate principal amount of the
outstanding debt securities of such series may declare the principal and any
accrued but unpaid interest due and payable immediately.
The holders of at least a majority in principal amount of the outstanding
debt securities of any series may, on behalf of the holders of all debt
securities of that series, waive any past default, except (1) failure to pay
the principal and any premium or interest when due and (2) failure to perform
any covenant or provision of the applicable indenture that cannot be amended
or modified without the unanimous consent of the holders of the debt
securities affected.
Under the indentures, the holders:
. agree to indemnify the trustee when exercising any right or power of any
holders;
. may, with certain exceptions, direct the time, method and place of (1)
any proceeding for any remedy available to the trustee and (2) any
exercise of the trustee's trusts or powers;
. may, upon satisfaction of specified conditions, including notice and
indemnity to the trustee, institute suit for the enforcement of their
rights under the applicable indenture; and
. have the absolute right to receive principal and any interest and
premium when due and to enforce that right by instituting a suit.
Each indenture requires us to provide the trustee with annual statements
regarding our fulfillment of our obligations under that indenture.
Modification of the Indentures
With the consent of the holders of a majority in principal amount of each
series of debt securities outstanding under the applicable indenture, we may
enter into a supplemental indenture with the trustee to amend or modify
provisions of the indenture. We may not, however, without the unanimous
consent of the holders of each series of debt securities outstanding under the
applicable indenture affected thereby:
. modify the payment terms of principal or interest;
. reduce the percentage of holders from whom we must obtain consent to
modify or amend the indenture or to waive our compliance with covenants;
or
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. subordinate the indebtedness evidenced by the debt securities to other
indebtedness, except to subordinate subordinated debt to senior debt or
junior subordinated debt to senior debt and subordinated debt.
Satisfaction and Discharge
Under the indentures, we will be discharged from our obligations with
respect to a series of debt securities prior to their maturity or redemption
when:
. we have irrevocably deposited with the trustee sufficient funds or
direct or fully guaranteed obligations of the applicable government to
pay the principal of, and any interest and premium on, the debt
securities to maturity or redemption;
. we have paid all other sums payable with respect to the debt securities;
. if the deposit is more than one year prior to maturity or redemption, we
have delivered to the trustee an opinion of tax counsel to the effect
that the deposit and discharge will not result in recognition by the
holders of the debt securities of any income, gain or loss for federal
income tax purposes that they would otherwise not recognize; and
. we have delivered to the trustee an opinion of counsel as to certain
other matters.
If we are discharged from our obligations as to a series of debt securities
prior to their maturity or redemption, the holders of those debt securities
will no longer be entitled to benefits of the indenture, except for (1)
registration of transfer or exchange of the debt securities and (2) replacement
of lost, stolen or mutilated debt securities. Those holders may look only to
the deposited funds or obligations for payment. However, if the trustee is
unable to apply any deposited money or obligations by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting the application, or
by reason of the trustee's inability to convert any deposited money or
government obligations into the proper currency or currency unit, our
obligations under the indenture will be reinstated until the trustee is able to
apply the deposited money or obligations.
The Trustee
State Street Bank and Trust Company serves as trustee under each indenture.
Each indenture limits the right of the trustee, as a creditor of ours, to
obtain payment of claims in certain cases and to realize on certain property
received with respect to any of the claims. The trustee may engage in other
transactions, except that, if it acquires any conflicting interest, it must
eliminate the conflict or resign. The trustee is trustee with respect to
outstanding senior debt securities previously issued under the indentures and
may from time to time perform certain other services for, including extending
lines of credit to, us in the ordinary course of business.
Certain Definitions
The following terms used in this prospectus and the indentures have the
following definitions:
. ""Consolidated net tangible assets" means the total of all assets
reflected on our consolidated balance sheet, prepared in accordance with
generally accepted accounting principles, at their net book values,
after deducting related depreciation, depletion, amortization and all
other valuation reserves which, in accordance with those principles,
should be set aside in connection with the business conducted, but
excluding goodwill, unamortized debt discount and all other like
segregated intangible assets, and amounts on the asset side of our
consolidated balance sheet for our capital stock, less the aggregate of
our current liabilities and our consolidated subsidiaries reflected on
our consolidated balance sheet, all as determined in accordance with
generally accepted accounting principles. For purposes of this
definition, "current liabilities" include all indebtedness for money
borrowed, incurred, issued, assumed or guaranteed by us, credit balances
of factoring clients and other payables and accruals, in
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each case payable on demand or due within one year of the date of
determination of consolidated net tangible assets, all as reflected on
our consolidated balance sheet, prepared in accordance with generally
accepted accounting principles.
. ""Debt'' means all liabilities, whether issued or assumed, in respect of
money borrowed, whether or not evidenced by notes, debentures or other
like written obligations to pay money, and all guarantees in respect of
money borrowed by third persons, whether or not evidenced by notes,
debentures or other like written obligations of those third persons to
pay money.
. ""Junior subordinated debt" means all of our debt which is by its terms
made subordinate and junior to our senior debt and subordinated debt.
. ""Lien'' means any mortgage, pledge, security interest or lien.
. ""Restricted subsidiary" means any of our subsidiaries or any subsidiary
of a restricted subsidiary (1) which is primarily engaged in the finance
business, (2) which conducts its finance business primarily in the U.S.
and (3) of which we and/or a restricted subsidiary own 51% or more of
each class of its voting stock.
. ""Senior debt" means all of our debt which is not by its terms made
subordinate or junior in right of payment from our general assets to any
of our other debt.
. ""Subordinated debt" means all of our debt which is by its terms made
subordinate or junior in right of payment to any of our other debt,
except our junior subordinated debt.
. ""Subsidiary'' means any corporation of which we and/or one or more of
our subsidiaries own more than 50% of the voting stock, other than
directors' qualifying shares.
Provisions Applicable Solely to the Senior Debt Securities
Each series of senior debt securities will constitute our senior debt and
will rank equally with each other series of senior debt securities. All our
subordinated debt and junior subordinated debt, including all subordinated
debt securities and junior subordinated debt securities, will be subordinated
to all our senior debt, including all senior debt securities.
Provisions Applicable Solely to the Subordinated Debt Securities
Each series of subordinated debt securities will constitute our
subordinated debt and will rank equally with each other series of subordinated
debt securities. All our junior subordinated debt, including all junior
subordinated debt securities, will be subordinated to all our subordinated
debt, including all subordinated debt securities. All our subordinated debt,
including all subordinated debt securities, will be subordinated to all our
senior debt, including all senior debt securities.
If we are involved in any insolvency or bankruptcy proceedings or any
receivership, liquidation, reorganization or other similar proceedings, or if
any subordinated debt securities are declared due and payable because of an
event of default, then we will pay in full all principal of, and any interest
and premium on, all our senior debt before we make any payment on the
subordinated debt securities.
If we issue subordinated debt securities, we will disclose the aggregate
principal amount of our senior debt outstanding as of a recent date in the
prospectus supplement. We will also describe any limitation on the issuance of
any additional senior debt in the prospectus supplement.
Provisions Applicable Solely to the Junior Subordinated Debt Securities
Each series of junior subordinated debt securities will constitute our
junior subordinated debt and will rank equally with each other series of
junior subordinated debt securities. The junior subordinated debt securities
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will be subordinated to all our senior debt, including all senior debt
securities, and all our subordinated debt, including all subordinated debt
securities.
If we are involved in any insolvency or bankruptcy proceedings or any
receivership, liquidation, reorganization or other similar proceedings, or if
any junior subordinated debt securities are declared due and payable because of
an event of default, then we will pay in full all principal of, and any
interest and premium on, all our senior debt and subordinated debt before we
make any payment on the junior subordinated debt securities.
If we issue junior subordinated debt securities, we will disclose the
aggregate principal amount of our senior debt and subordinated debt, if any,
outstanding as of a recent date in the prospectus supplement. We will also
describe any limitation on the issuance of any additional senior debt or
subordinated debt in the prospectus supplement.
As of June 30, 1999, the aggregate principal amount of our senior debt
outstanding was $11.9 billion and there was no outstanding subordinated debt or
junior subordinated debt.
Description of Warrants
The following statements about the warrants are summaries of, and subject
to, the detailed provisions of the warrant agreement that we may enter into
with a warrant agent. We filed a form of the warrant agreement with the SEC.
General
We may issue warrants to purchase debt securities, evidenced by warrant
certificates, under a warrant agreement with a warrant agent. We may issue the
warrants independently or in connection with debt securities, and the warrants
may be attached to, or separate from, the debt securities. If we offer
warrants, a prospectus supplement will describe the terms of the warrants,
including the following:
. the offering price, if any;
. the designation, aggregate principal amount and terms of the debt
securities purchasable upon exercise of the warrants;
. if applicable, the designation and terms of the debt securities with
which the warrants are issued and the number of warrants issued with
each of the debt securities;
. if applicable, the date on and after which the warrants and the related
debt securities will be separately transferable;
. the principal amount of debt securities purchasable upon exercise of one
warrant and the price at which the debt securities may be purchased;
. the dates on which the right to exercise the warrants commences and
expires;
. whether the warrants will be issued in registered or bearer form;
. a summary of the material tax consequences under U.S. law of owning the
warrants;
. a description of any securities exchanges or markets on which the
warrants will be listed;
. the name of the warrant agent and any co-warrant agent; and
. any other terms of the warrants.
Warrant certificates may be exchanged for new warrant certificates of
different denominations and, if in registered form, may be presented for
registration of transfer at the corporate trust office of the warrant agent or
at such other office as we may designate in a prospectus supplement.
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Warrant holders do not have any of the rights of holders of debt securities
and are not entitled to payments of principal of, and any interest or premiums
on, the debt securities.
Exercise of Warrants
Warrant holders may exercise their warrants by:
. completing and executing the form of election to purchase that appears
on the reverse side of the warrant certificate;
. surrendering their warrant certificates at the corporate trust office of
the warrant agent; and
. paying the exercise price in full.
Upon exercise of a warrant, the warrant agent will deliver the debt securities
in authorized denominations in accordance with the instructions of the
exercising warrant holder and at the sole cost and risk of such warrant holder.
If the exercising warrant holder elects to exercise less than all of the
warrants evidenced by the warrant certificate, the warrant agent will also
deliver a new warrant certificate evidencing the remaining amount of warrants.
Description of Capital Stock
The following summary of our capital stock is not complete and is subject
to, and qualified in its entirety by reference to, our charter, our bylaws, the
Delaware General Corporation Law and any prospectus supplement and certificate
of designation relating to the capital stock that we offer by this prospectus.
Our charter and bylaws have been, and a form of a certificate of designation
will be, filed with the SEC.
General
Our charter authorizes us to issue 852,000,000 shares of capital stock, of
which:
. 500,000,000 shares are designated class A common stock, $0.25 par value
per share;
. 300,000,000 shares are designated class B common stock, $0.25 par value
per share;
. 50,000,000 shares are designated senior preferred stock, $0.01 par value
per share; and
. 2,000,000 shares are designated junior preferred stock, no par value per
share.
As of July 29, 1999, after giving effect to the merger of HealthCare
Financial Partners, Inc. into one of our wholly-owned subsidiaries, which we
consummated on July 28, 1999, there were:
. 46,320,982 shares of class A common stock issued and 45,997,892 shares
outstanding;
. 51,050,000 shares of class B common stock issued and outstanding;
. 51,050,000 shares of class A common stock reserved for issuance upon
conversion of shares of class B common stock;
. 3,932,312 shares of class A common stock reserved for issuance under our
1998 stock incentive plan;
. 5,000,000 shares of series A preferred stock, a series of senior
preferred stock, issued and outstanding;
. 1,500,000 shares of series C preferred stock, a series of senior
preferred stock, issued and outstanding;
. 1,250,000 shares of series D preferred stock, a series of senior
preferred stock, issued and outstanding; and
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. 100,000 shares of NW preferred stock, a series of junior preferred
stock, authorized and reserved for issuance.
All outstanding shares of common and preferred stock are fully paid and
nonassessable. Any shares of senior preferred stock or class A common stock
that we offer by this prospectus will, upon full payment of its purchase price,
also be fully paid and nonassessable.
Senior Preferred Stock
Our charter authorizes our board of directors to issue preferred stock in
one or more series from time to time. Our board may fix the rights,
preferences, privileges and restrictions, including dividend rights, voting
rights, conversion rights, redemption rights and liquidation preferences, of
the preferred stock in a certificate of designation without any further vote or
action by the stockholders, except as may be required by the terms of our
outstanding preferred stock.
If we offer a series of senior preferred stock, a prospectus supplement will
describe its terms, including the following:
. the maximum number and designation of shares to constitute the series;
. the annual dividend rate, if any, and whether it is fixed or variable or
both;
. the date or dates from which dividends, if any, will begin to accrue or
accumulate and whether dividends will be cumulative;
. the terms and conditions of our right, if any, to redeem the shares;
. the liquidation preference, if any;
. whether the shares will be subject to operation of a retirement or
sinking fund and, if so, the terms and provisions relating to the fund;
. the terms and conditions of your right, if any, to cause us to redeem
the shares;
. the terms and conditions of your right, if any, to convert the shares
into, or exchange the shares for, shares of any other series or class of
our capital stock or the capital stock of another corporation;
. voting rights, if any;
. any other preferences and relative, participating, optional or other
special rights, qualifications, limitations or restrictions;
. a summary of the material tax consequences under U.S. law of owning
shares of preferred stock; and
. a description of any securities exchanges or markets on which the shares
will be listed.
Existing Preferred Stock
Our currently authorized preferred stock is described below.
Series A Preferred Stock
We pay cumulative, quarterly dividends on our series A preferred stock at an
annual rate of 8.125%. We may not declare or pay cash dividends on our common,
junior preferred or other series of senior preferred stock on parity with the
series A preferred stock unless we have paid full cumulative dividends on all
outstanding shares of our series A preferred stock for all past dividend
periods. We may redeem in whole or in part our series A preferred stock on or
after September 22, 2000 at a price of $25 per share plus accrued and unpaid
dividends.
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Except as required by law and as described in this prospectus, the holders
of our series A preferred stock have no voting rights. If we fail to pay six
consecutive quarterly dividends on our series A preferred stock, the holders of
the series A preferred stock, voting separately as a class, may elect two
additional directors beyond the number to be elected by our other stockholders
at the next annual meeting and at every subsequent annual meeting at which the
terms of the directors they elected expire so long as we are in arrears. The
directors elected by the holders of series A preferred stock will serve until
the dividend default ceases to exist. In addition, without the vote of the
holders of at least two-thirds of the outstanding shares of our series A
preferred stock, we will not:
. issue any shares of stock ranking senior to the outstanding shares of
series A preferred stock as to the payment of dividends or upon
liquidation; or
. amend our charter or bylaws to change the par value of the shares of
series A preferred stock, the aggregate number of authorized shares of
series A preferred stock or the powers, preferences or special rights of
the series A preferred stock in a manner that adversely affects the
holders of our series A preferred stock.
Our series A preferred stock carries a liquidation preference of $25 per
share plus accrued and unpaid dividends. Our series A preferred stock ranks
senior with respect to payment of dividends and liquidation preferences to our
common stock and junior preferred stock.
Series C Preferred Stock
Dividends on our series C preferred stock are noncumulative. Accordingly, if
our board of directors fails to declare a dividend on our series C preferred
stock payable on a dividend payment date, then holders of our series C
preferred stock have no right to receive a dividend for the dividend period
ending on that dividend payment date. We have no obligation to pay any dividend
accrued for such period, whether or not dividends on our series C preferred
stock are declared payable on any future dividend payment date. If declared by
our board of directors, dividends are payable quarterly at an annual rate of
6.687%. We will adjust the amount of dividends payable on our series C
preferred stock in the event of certain amendments to the Internal Revenue Code
of 1986, as amended, in respect of the dividends received reduction. We may not
declare or pay cash dividends on our common stock, junior preferred stock or
other series of senior preferred stock ranking equal with our series C
preferred stock unless we have paid all declared dividends on all outstanding
shares of series C preferred stock for all past dividend periods. We may redeem
in whole or in part our series C preferred stock on or after August 15, 2007 at
a price of $100 per share plus accrued and unpaid dividends, whether or not
declared, for the then-current dividend period and, if declared, accrued and
unpaid dividends for prior dividend periods.
Except as required by law and as described in this prospectus, the holders
of our series C preferred stock have no voting rights. If we have not paid or
declared and set aside dividends payable on shares of our series C preferred
stock or on any other class or our series of senior preferred stock for which
dividends are noncumulative ranking equal with our series C preferred stock and
upon which like voting rights have been conferred and are exercisable for the
equivalent of six full quarterly dividend periods, whether or not consecutive,
the holders of our series C preferred stock, voting as a single class with the
holders of the other noncumulative voting stock, may elect two additional
directors beyond the number to be elected by our other stockholders, including
holders of our series A preferred stock, at the next annual meeting and at
every subsequent annual meeting at which the terms of the directors they
elected expire so long as we are in arrears. The right of holders of series C
preferred stock to elect directors will continue until we pay or declare and
set aside dividends on the series C preferred stock for at least four
consecutive full quarterly dividend periods. In addition:
. without the vote of the holders of at least two-thirds of the
outstanding shares of our series C preferred stock, we will not amend,
alter or repeal any provision of our charter in a manner that
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<PAGE>
would adversely affect the powers, privileges or rights of the holders
of our series C preferred stock; and
. without the vote of the holders of at least two-thirds of the
outstanding shares of our series C preferred stock and any other series
of our noncumulative preferred stock ranking equal with the series C
preferred stock either as to dividends or upon liquidation, voting as a
single class without regard to series, we will not (1) issue, authorize
or increase the authorized amount of our series C preferred stock, (2)
issue or authorize any obligation or security convertible into or
evidencing a right to purchase our series C preferred stock or (3)
reclassify any of our authorized stock into an additional class or
series of stock ranking prior to our series C preferred stock as to
dividends or upon liquidation.
Our series C preferred stock carries a liquidation preference of $100 per
share plus an amount equal to the sum of accrued and unpaid dividends, whether
or not earned or declared, for the then-current dividend period to the date of
the final distribution that ranks:
. senior to payments to holders of our common stock, junior preferred
stock and any other class or series of stock ranking junior to our
series C preferred stock; and
. equal with payments to holders of each other series of our senior
preferred stock outstanding on the date of original issue of our series
C preferred stock.
Series D Preferred Stock
Our series D preferred stock is identical to our series C preferred stock,
except that:
. if declared by our board of directors, dividends are payable quarterly
on the series D preferred stock at an annual rate of 6.95%; and
. we may redeem in whole or in part our series D preferred stock on or
after February 15, 2009 at a price of $100 per share plus accrued and
unpaid dividends, whether or not declared, for the then-current dividend
period and, if declared, accrued and unpaid dividends for prior dividend
periods.
NW Preferred Stock
We authorized the issuance of 100,000 shares of our NW preferred stock
pursuant to our keep well agreement with Fuji Bank. In the keep well
agreement, Fuji Bank has agreed to purchase NW preferred stock in an amount
required to maintain our net worth at $500 million. At June 30, 1999, our net
worth was approximately $2 billion. To date, we have not issued any NW
preferred stock to Fuji Bank. If we issue NW preferred stock, we will pay
dividends at a rate of 1% per annum above the three-month rate at which Fuji
Bank offers deposits in U.S. dollars in London, England to prime banks in the
London interbank market. The dividends will be noncumulative and payable, if
declared, quarterly. If the NW preferred stock is issued, we will not pay cash
dividends on our common stock unless we have declared and paid or set aside
full dividends for the then-current dividend period on all outstanding shares
of NW preferred stock.
Subject to specified conditions, within a specified period of time after
the end of a calendar quarter, we will redeem shares of NW preferred stock, in
whole or in part, at the option of the holder, in an aggregate amount not
greater than the excess of (1) our net worth as of the end of the quarter over
(2) $500 million at a price equal to the price we received upon the issuance
of the NW preferred stock plus accrued and unpaid dividends for the then-
current dividend period.
Except as required by law, holders of the NW preferred stock will have no
voting rights. The NW preferred stock will have a liquidation preference equal
to the price that we received for each share upon the issuance of the NW
preferred stock plus accrued and unpaid dividends for the then-current
dividend period.
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The NW preferred stock will rank senior to our common stock and junior to our
senior preferred stock with respect to payment of dividends and liquidation
preference.
Common Stock
Voting Rights
The holders of our class A common stock and class B common stock generally
have identical rights, except that holders of our class A common stock have one
vote per share and holders of our class B common stock have three votes per
share on all matters to be voted on by stockholders. Fuji Bank beneficially
owns all of our outstanding class B common stock. Fuji Bank, or certain of its
transferees, may reduce from time to time the number of votes per share of
class B common stock and may not hold shares of class B common stock
representing more than 79% of the combined voting power of all outstanding
classes of voting stock. Holders of class A common stock and class B common
stock may not cumulate their votes for the election of directors.
Generally, except as otherwise required by the Delaware General Corporation
Law, all matters to be voted on by stockholders must be approved by a majority
of the votes entitled to be cast by all holders of shares of our class A common
stock and class B common stock present in person or represented by proxy,
voting together as a single class, subject to any voting rights granted to
holders of our preferred stock. However, except as otherwise provided by law or
our charter and subject to any voting rights granted to holders of our
preferred stock, amendments to our charter must be approved by a majority of
all shares of class A common stock and class B common stock, voting together as
a single class. In addition, amendments to our charter that would change the
powers, preferences or special rights of a class of common stock in a manner
that adversely affects the holders of shares of that class of common stock must
be approved by a majority of the votes entitled to be cast by the holders of
shares of the class adversely affected by the amendment, voting as a separate
class.
Dividends
Holders of our class A common stock and class B common stock share ratably
on a per share basis in any dividends declared by our board of directors,
subject to any preferential rights of our preferred stock. We may not pay
dividends on our common stock unless we have paid all declared dividends on all
outstanding shares of our series C preferred stock and series D preferred stock
and full cumulative dividends on all outstanding shares of our class A common
stock. If we pay dividends or make other distributions payable in common stock,
including distributions pursuant to stock splits or divisions of common stock,
we will pay or distribute only shares of class A common stock to holders of
class A common stock and only shares of class B common stock to holders of
class B common stock. We may not reclassify, subdivide or combine shares of one
class of our common stock without at the same time proportionally
reclassifying, subdividing or combining shares of the other series of our
common stock.
Conversion
Holders of our class A common stock have no conversion rights. Fuji Bank,
its subsidiary or certain unaffiliated transferees can, at their option,
convert each share of class B common stock that it holds into one share of our
class A common stock.
If Fuji Bank and/or its subsidiaries transfer shares of our class B common
stock, the shares will automatically convert into shares of our class A common
stock, unless:
. the transferee is Fuji Bank or a subsidiary of Fuji Bank; or
. the transferee is an unaffiliated party and it and its subsidiaries
receive shares of our class B common stock representing more than a 50%
voting interest in the outstanding shares of our common stock, in which
case the shares retained by Fuji Bank and its subsidiaries will
automatically convert into shares of our class A common stock.
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In addition, all shares of our class B common stock will automatically
convert into shares of our class A common stock if the number of outstanding
shares of class B common stock beneficially owned by Fuji Bank and its
subsidiaries or the unaffiliated party and its subsidiaries, as the case may
be, falls below 30% of the aggregate number of outstanding shares of our common
stock. This automatic conversion will ensure that Fuji Bank and its
subsidiaries or the unaffiliated party and its subsidiaries, as the case may
be, retain voting control over us only if they continue to have a significant
economic interest in us.
Other Rights
If we engage in a merger, reorganization or consolidation with, or into,
another entity and, as a result, our common stock is exchanged for cash or
property, we will exchange each share of our common stock, regardless of class,
for the same amount of cash or property. If our common stock is exchanged for
stock or other securities, we may convert or exchange shares of class A common
stock and shares of class B common stock into, or with, stock or other
securities that differ to the extent that the class A common stock and the
class B common stock differ in our charter. If we liquidate, dissolve or wind
up our business, we will pay in full the amounts required to be paid to holders
of our preferred stock, then distribute ratably any remaining assets to holders
of our common stock.
If we issue additional shares of class A common stock, or other securities
convertible into class A common stock, each holder of class B common stock has
preemptive rights to purchase the amount of class A common stock or other
securities convertible into class A common stock, as the case may be, that will
allow the holder to maintain the percentage of beneficial ownership it had
before the issuance. Holders of class A common stock do not have preemptive
rights to purchase additional securities.
Transfer Agent and Registrar
The Bank of New York serves as the transfer agent and registrar for the
class A common stock.
Certain Charter and Bylaw Provisions
Corporate Opportunities
Our charter allows Fuji Bank to engage in activities or lines of business
that are the same as, or similar to, the activities and lines of business in
which we engage. Neither Fuji Bank nor any of its directors, officers or other
employees will be liable to us or our stockholders for breach of any fiduciary
duty because it does so.
If Fuji Bank knows of a potential transaction or matter which may be a
corporate opportunity for it and for us, it has no duty to communicate or offer
the transaction or matter to us. Fuji Bank will not be liable to us or our
stockholders for breach of any fiduciary duty as a stockholder because it
pursues or acquires the opportunity for itself, directs the opportunity to
another person or does not communicate information regarding the opportunity to
us. If one of our directors, officers or employees who is also a director,
officer or employee of Fuji Bank knows of a potential transaction or matter
which may be a corporate opportunity for both us and Fuji Bank, he or she may
fully satisfy his or her fiduciary duty if he or she acts in a manner
consistent with the following policies:
. a corporate opportunity offered to one of our officers or employees who
is also a director, but not an officer, or employee of Fuji Bank is our
corporate opportunity;
. a corporate opportunity offered to one of our officers or employees who
is also an officer or employee of Fuji Bank is our corporate opportunity
only if it is expressly offered in writing to the person in his or her
capacity as our officer or employee; and
. a corporate opportunity offered to one of our directors who is not one
of our officers or employees, but who is a director, officer or employee
of Fuji Bank, is our corporate opportunity only if it is expressly
offered in writing to the person in his or her capacity as director.
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If Fuji Bank's beneficial ownership of our common stock falls below 30% of
the voting power of all classes of our outstanding common stock and none of our
directors, officers or other employees is also a director, officer or other
employee of Fuji Bank or any of its other subsidiaries, these provisions of our
charter and bylaws will expire. Any person who purchases or otherwise acquires
our common stock is deemed to know about and consent to these provisions of our
charter.
Provisions that May Have an Anti-Takeover Effect
The following provisions in our charter and by-laws may have an anti-
takeover effect and may delay, deter or prevent a tender offer or takeover
attempt that a stockholder might consider to be in its best interest:
. our charter and bylaws provide that, subject to the rights of holders of
preferred stock to elect additional directors under specified
circumstances, only the board of directors (1) fixes the number of
directors and (2) fills vacancies, other than those occurring by reason
of removal of a director by our stockholders;
. our bylaws provide that a stockholder must provide us advance written
notice of its intent to nominate a director or raise a matter at an
annual meeting;
. our charter and bylaws provide that only specified officers, or our
secretary at the request of a majority of our directors, may call
special meetings of stockholders;
. our bylaws provide that stockholders may take any action required or
permitted to be taken by stockholders by written consent only so long as
Fuji Bank and its subsidiaries or a certain unaffiliated transferee and
its subsidiaries, as the case may be, beneficially own more than 50% of
the total voting power of our outstanding common stock;
. our charter requires, subject to the rights of the holders of our
preferred stock, the affirmative vote of at least 66 2/3% of the total
voting power of our outstanding common stock, voting together as a
single class, to amend, repeal or adopt any provision inconsistent with
any of the foregoing provisions of our charter; and
. our charter and bylaws require, subject to the rights of the holders of
our preferred stock, the affirmative vote of a majority of directors or
the holders of at least 66 2/3% of the total voting power of our
outstanding common stock, voting together as a single class, to alter,
amend or repeal our bylaws.
We are subject to Section 203 of the Delaware General Corporation Law. In
general, under this statute, in certain circumstances, we may not engage in a
"business combination" with an "interested stockholder" for three years after
the date on which the entity becomes an interested stockholder, unless either:
. the stockholder acquires more than 85% of our outstanding voting stock
upon consummation of the transaction in which the stockholder becomes an
interested stockholder;
. our board of directors approved the business combination or the
transaction in which the person becomes an interested stockholder before
the date on which the stockholder becomes an interested stockholder; or
. our board of directors and holders of two-thirds of our outstanding
voting stock at a stockholder meeting held on or subsequent to the date
of the business combination approve the business combination.
An "interested stockholder" owns, or at any time in the prior three years did
own, 15% or more of a corporation's voting stock. A "business combination" is,
among other things, a merger, consolidation, stock sale, asset based
transaction or other transaction resulting in financial benefit to the
interested stockholder.
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Limitations on Directors' Liability
Under our charter, none of our directors will be liable to us or our
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability for:
. breach of the director's duty of loyalty;
. acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law;
. certain unlawful dividend payments or stock redemptions or repurchases;
or
. any transaction from which the director derived an improper personal
benefit.
PLAN OF DISTRIBUTION
We may offer the securities directly to you, to or through underwriters,
through dealers or agents or through a combination of these methods. A
prospectus supplement will disclose the following information:
. the underwriters, dealers or agents involved in the offering under this
prospectus;
. the terms of the offering, including the purchase price of the
securities and our proceeds from the sale of the securities;
. the managing underwriters;
. the underwriting discounts and other items constituting underwriters'
compensation;
. any initial public offering price;
. any discounts or concessions allowed, reallowed or paid to dealers,
which may change from time to time;
. the terms of any offers to purchase securities solicited by us directly
from institutional investors;
. the anticipated delivery date of the securities; and
. the securities exchanges or markets on which the securities may be
listed.
If we use underwriters in an offering of securities, we will execute an
underwriting agreement with the underwriters. If we use an underwriter or an
underwriting syndicate in an offering, the underwriter(s) will purchase all of
the securities for their own account(s), subject to certain conditions, and may
resell them from time to time in one or more transactions at:
. a fixed price or prices which may be changed;
. prevailing market prices;
. prices relating to the prevailing market prices; or
. negotiated prices.
If we use a dealer in an offering of securities, we will sell the securities
to the dealer, as principal. The dealer may then resell the securities to the
public at varying prices to be determined by the dealer at the time of resale.
If we use an agent in an offering of securities, the agent will act on a
best efforts basis for the period of its appointment unless we indicate
otherwise in the applicable prospectus supplement.
Any dealer or agent that we use in an offering of securities may be deemed
an underwriter within the meaning of the Securities Act, and any discounts or
commissions received by them from us, and any profit on
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the resale of our securities by them, may be treated as underwriting discounts
and commissions under the Securities Act. We may solicit offers to purchase
securities from, and we may sell securities directly to, institutional
investors or others who may be deemed underwriters within the meaning of the
Securities Act when they resell the securities. We may enter into agreements
with any underwriter, dealer and agent that we use in an offering of securities
to indemnify them against certain civil liabilities, including liabilities
under the Securities Act.
If we so indicate in the prospectus supplement, we will authorize
underwriters, dealers or agents to solicit offers by certain institutional
investors that we approve to purchase securities pursuant to contracts that
provide for payment and delivery at a future date. These institutional
investors with whom we may enter into delayed purchase contracts include
commercial and savings banks, insurance companies, pension funds, investment
companies, and educational and charitable institutions. The obligations of the
institutional investors will not be subject to any conditions, except that:
. the purchase by an institution of the securities may not, at the time of
delivery, be prohibited under the laws of any jurisdiction to which it
is subject; and
. if the securities are also being sold to underwriters, we must sell to
underwriters the securities not subject to delayed delivery.
The underwriters or other agents will not have any responsibility regarding the
validity or performance of the delayed purchase contracts.
Some of the underwriters, dealers or agents and their associates may engage
in transactions with, serve as financial advisors to and perform other general
financing and bank services for us and for our affiliates in the ordinary
course of business.
Some persons participating in the offering may engage in, and discontinue at
any time, transactions that stabilize, maintain or otherwise affect the price
of the securities in order to facilitate an offering of the securities. These
transactions may include over-allotments or short sales of the securities,
which involve the sale by persons participating in the offering of more
securities than they have purchased from us who then cover the over-allotments
or short positions by purchasing securities in the open market or by exercising
any over-allotment option granted to them by us. These transactions may also
include bidding for or purchasing securities in the open market or imposing
penalty bids, whereby selling concessions allowed to dealers participating in
the offering may be reclaimed if securities sold by them are repurchased in
connection with stabilization transactions. The effect of these transactions
may be to stabilize or maintain the market price of the securities at a level
above that which might otherwise prevail in the open market.
Other than our class A common stock, which is listed on the New York Stock
Exchange and the Chicago Stock Exchange, each series of securities will be a
new issue of securities with no established trading market. Any class A common
stock sold pursuant to this prospectus will be listed on the New York Stock
Exchange and the Chicago Stock Exchange. Other securities may or may not be
listed on a national securities exchange. A secondary market may not be
created, or if created, may not continue for the debt securities, warrants or
senior preferred stock.
LEGAL OPINIONS
Mark J. Ohringer, Esq., our Deputy General Counsel, will issue an opinion
for us about the legality of the securities we offer under this prospectus.
Katten Muchin & Zavis, 525 West Monroe Street, Suite 1600, Chicago, Illinois
60661-3693, or other legal counsel, will issue opinions on certain legal
matters for any agents or underwriters. Mr. Ohringer is one of our full-time
employees and currently owns or has the right to acquire a total of
approximately 13,000 shares of our class A common stock. Katten Muchin & Zavis
also acts as our counsel from time to time and a limited number of its
attorneys own, in the aggregate, less than 1% of the outstanding shares of our
class A common stock.
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INDEPENDENT PUBLIC ACCOUNTANTS
The financial statements and schedules included in our Annual Report on Form
10-K for the year ended December 31, 1998, as amended on Form 10-K/A, and
incorporated by reference in this prospectus and elsewhere in the registration
statement of which this prospectus is a part, have been audited by Arthur
Andersen LLP, independent public accountants, as indicated in its report, and
are incorporated by reference in this prospectus upon the authority of Arthur
Andersen LLP as experts in accounting and auditing in giving the report.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The expenses, other than underwriting discounts and commissions, payable by
the Registrant in connection with the issuance and distribution of the
securities covered hereby are subject to future contingencies estimated to be
as follows:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee............. $2,780,000*
Printing and engraving expenses................................. 400,000
Legal fees and expenses......................................... 100,000
Listing fees on securities exchanges............................ 50,000
Accounting fees and expenses.................................... 75,000
Trustees' fees and expenses..................................... 80,000
Rating agency fees.............................................. 1,000,000
Miscellaneous expenses.......................................... 15,000
----------
Total......................................................... $4,500,000
==========
</TABLE>
--------
*Actual.
Item 15. Indemnification of Directors and Officers
The Registrant, a Delaware corporation, is empowered by Section 145 of the
Delaware General Corporation Law, subject to the procedures and limitations
stated therein, to indemnify any person against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in the defense of any threatened, pending or completed
action, suit or proceeding in which such person is made a party by reason of
his being or having been a director or officer of the Registrant. The statute
provides that indemnification pursuant to its provisions is not exclusive of
other rights of indemnification to which a person may be entitled under any by-
law, agreement, vote of stockholders or disinterested directors, or otherwise.
The Amended and Restated By-Laws of the Registrant provide for indemnification
by the Registrant of its directors and officers to the full extent permitted by
the Delaware General Corporation Law. Also, as permitted by the Delaware
General Corporation Law, the Registrant's Amended and Restated Certificate of
Incorporation eliminates the personal liability of each director of the
Registrant to the Registrant or its stockholders for monetary damages arising
out of or resulting from any breach of such director's fiduciary duty as a
director, except where such director breached such director's duty of loyalty
to the Registrant or its stockholders, failed to act in good faith, engaged in
intentional misconduct or a knowing violation of the law, paid an unlawful
dividend, approved an unlawful stock purchase or redemption, or obtained an
improper personal benefit. The Registrant has purchased a directors' and
officers' liability insurance policy which entitles it to be reimbursed for
certain indemnity payments it is required or permitted to make to its directors
and officers.
Reference is made to the form of Underwriting Agreement Basic Provisions
referenced as Exhibit 1.1 hereto and the form of Distribution Agreement
referenced as Exhibit 1.2 hereto for a description of the indemnification
arrangements in connection with any offering through underwriters of the
securities registered hereby. Similar indemnification provisions were contained
in the underwriting agreements executed in connection with prior offerings and
sales of securities by the Registrant.
II-1
<PAGE>
Item 16. Exhibits
<TABLE>
<CAPTION>
Exhibit
Number
-------
<C> <S>
*1.1 Underwriting Agreement Basic Provisions dated October 16, 1997 for
dollar denominated Securities to be distributed in the United
States. An Underwriting Agreement relating to Securities to be
distributed outside the United States or for Securities
denominated in foreign currencies or foreign currency units will
be filed as an Exhibit to a Current Report on Form 8-K and
incorporated herein by reference.
**1.2 Form of Distribution Agreement.
***4.1 Amended and Restated Certificate of Incorporation of Heller
Financial, Inc. (the "Company").
***4.2 Amended and Restated By-Laws of the Company.
**4.3 Heller FInancial, Inc. Standard Multiple-Series Indenture
Provisions dated February 5, 1987.
*4.4 Indenture dated as of September 1, 1995 between the Company and
State Street Bank and Trust Company, as successor Shawmut Bank
Connecticut, National Association, as Trustee, with respect to the
Senior Debt Securities. The form or forms of Senior Debt
Securities with respect to each particular offering will be filed
as an Exhibit to a Current Report on Form 8-K and incorporated
herein by reference.
****4.5 First Supplemental Indenture dated as of October 13, 1995 between
the Company and State Street Bank and Trust Company, as successor
to Shawmut Bank Connecticut, National Association, as Trustee,
with respect to the Senior Debt Securities.
*****4.6 Second Supplemental Indenture dated as of November 17, 1997
between the Company and State Street Bank Trust Company, as
successor to Shawmut Bank Connecticut, National Association, as
Trustee, with respect to the Senior Debt Securities.
*4.7 Indenture dated as of September 1, 1995 between the Company and
State Street Bank and Trust Company, as successor to Shawmut Bank
Connecticut, National Association, as Trustee, with respect to the
Subordinated Debt Securities. The form or forms of Subordinated
Debt Securities with respect to each particular offering will be
filed as an Exhibit to a Current Report on Form 8-K and
incorporated herein by reference.
****4.8 First Supplemental Indenture dated as of October 13, 1995 between
the Company and State Street Bank and Trust Company, as successor
to Shawmut Bank Connecticut, National Association, as Trustee,
with respect to the Subordinated Debt Securities.
*4.9 Indenture dated as of September 1, 1995 between the Company and
State Street Bank and Trust Company, as successor to Shawmut Bank
Connecticut, National Association, as Trustee, with respect to the
Junior Subordinated Debt Securities. The form or forms of Junior
Subordinated Debt Securities with respect to each particular
offering will be filed as an Exhibit to a Current Report on Form
8-K and incorporated herein by reference.
****4.10 First Supplemental Indenture dated as of October 13, 1995 between
the Company and State Street Bank and Trust Company, as successor
to Shawmut Bank Connecticut, National Association, as Trustee,
with respect to the Junior Subordinated Debt Securities.
******4.11 Form of Warrant Agreement to be entered into between the Company
and the Warrant Agent (including form of Warrant Certificate).
4.12 Form of Certificate of Designation, Preferences and Rights for
Senior Preferred Stock. The form or forms will be filed as an
Exhibit to a Current Report on Form 8-K and incorporated herein by
reference.
*******4.13 Specimen stock certificate representing Class A Common Stock.
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number
-------
<C> <S>
********4.14 Amended and Restated Keep Well Agreement between The Fuji Bank,
Limited and the Company, as amended.
+5 Opinion of Mark J. Ohringer, Esq., Deputy General Counsel of the
Company, as to the validity of the Securities.
+23.1 Consent of Arthur Andersen LLP, independent auditors.
+23.2 Consent of Mark J. Ohringer, Esq. (contained in his opinion filed
as Exhibit 5 hereto).
+24 Powers of Attorney (included on the signature page hereto).
+25 Form T-1 Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of State Street Bank and Trust
Company, under the Indentures for the Senior Debt Securities,
Subordinated Debt Securities and Junior Subordinated Debt
Securities.
</TABLE>
- --------
<TABLE>
<C> <S>
+ Filed herewith.
* Incorporated by reference to the Company's Registration Statement on
Form S-3, File No. 333-38545 (filed October 23, 1997).
** Incorporated by reference to the Company's Registration Statement on
Form S-3, File No. 33-11757 (filed February 5, 1987).
*** Incorporated by reference to the Company's Quarterly Report on Form
10-Q for the period ended March 31, 1998 (File No. 1-6157).
**** Incorporated by reference to the Company's Current Report on Form 8-K
(File No. 1-6157, filed October 18, 1995).
***** Incorporated by reference to the Company's Current Report on Form 8-K
(File No. 1-6157, filed December 4, 1997).
****** Incorporated by reference to the Company's Registration Statement on
Form S-3, File No. 33-21310 (filed April 20, 1988).
******* Incorporated by reference to the Company's Registration Statement on
Form S-2, File No. 333-46915 (filed February 26, 1998).
******** Incorporated by reference to the Company's Registration Statement on
Form S-3, File No. 333-58723 (filed July 8, 1998).
</TABLE>
Item 17. Undertakings
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to the 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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Securities and
Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume
II-3
<PAGE>
and price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective 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;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed 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) 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 foregoing provisions, 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 Securities Act of
1933 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 any 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
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
(6) To file an application for the purpose of determining the eligibility of
the trustee under Subsection (a) of Section 310 of the Trust Indenture Act of
1939, as amended in accordance with the rules and regulations prescribed by the
Commission under Section 305(b)(2) of the Trust Indenture Act of 1939.
II-4
<PAGE>
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 City of Chicago, State of Illinois, on the Sixth day of
August, 1999.
HELLER FINANCIAL, INC.
/s/ Richard J. Almeida
By: _________________________________
Richard J. Almeida
Chairman and Chief Executive
Officer
POWER OF ATTORNEY
Each person whose signature appears below, hereby constitutes and appoints,
Lauralee E. Martin, Debra H. Snider and Mark J. Ohringer and each of them, his
or her true and lawful attorneys-in-fact and agents, with full power of
substitution, to sign on his or her behalf, individually and in each capacity
stated below, all amendments and post-effective amendments to this Registration
Statement on Form S-3 (including any registration statement filed pursuant to
Rule 462(b) under the Securities Act of 1933 and all amendments thereto) and to
file the same, with all exhibits thereto and any other documents in connection
therewith, with the Securities and Exchange Commission under the Securities Act
of 1933, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully and to all intents and
purposes as each might or could do in person, thereby ratifying and confirming
each act that said attorneys-in-fact and agents may lawfully do or cause to be
done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on August 6, 1999.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Richard J. Almeida _ Chairman, Chief Executive Officer
Richard J. Almeida (principal executive officer) and Director
__/s/ Michael Conway ___ Director
Michael A. Conway
/s/ Soichi Hirabayashi _ Director
Soichi Hirabayashi
__/s/ Taizo Ishikawa ___ Director
Taizo Ishikawa
___/s/ Takaaki Kato ____ Director
Takaaki Kato
___/s/ Mark Kessel _____ Director
Mark Kessel
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
___/s/ Tetsuo Kumon ____ Director
Tetsuo Kumon
/s/ Dennis P. Lockhart _ Director and President of
Dennis P. Lockhart Heller International Group, Inc.
____/s/ Frank Ptak _____ Director
Frank S. Ptak
_/s/ Masahiro Sawada ___ Director
Masahiro Sawada
_/s/ Kenichiro Tanaka __ Director
Kenichiro Tanaka
/s/ Frederick Wolfert __ President, Chief Operating Officer and Director
Frederick Wolfert
/s/ Lauralee E. Martin _ Executive Vice President and Chief Financial Officer
Lauralee E. Martin (principal financial officer)
_/s/ Lawrence G. Hund __ Executive Vice President and Controller
Lawrence G. Hund (principal accounting officer)
</TABLE>
II-6
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Exhibit
------- -------
<C> <S>
5 Opinion of Mark J. Ohringer, Esq., Deputy General Counsel of the
Company, as to the validity of the Securities.
23.1 Consent of Arthur Andersen LLP, independent auditors.
23.2 Consent of Mark J. Ohringer, Esq. (contained in his opinion filed as
Exhibit 5 hereto).
24 Powers of Attorney (included on the signature page hereto).
25 Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of State Street Bank and Trust Company, under
the Indentures for the Senior Debt Securities, Subordinated Debt
Securities and Junior Subordinated Debt Securities.
</TABLE>
II-7
<PAGE>
[Heller Letterhead]
August 6, 1999
Heller Financial, Inc.
500 West Monroe Street
Chicago, Illinois 60661
Ladies and Gentlemen:
I have acted as counsel for Heller Financial, Inc., a Delaware corporation
(the "Company"), in connection with the preparation and filing of a registration
statement on Form S-3 (the "Registration Statement") to be filed with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Securities Act"). The Registration Statement relates
to the registration of up to $10,000,000,000 aggregate initial offering price of
an indeterminate amount of the following:
. debt securities (the "Debt Securities") consisting of debentures,
notes and/or other evidences of indebtedness, in one or more series,
which are to be issued by the Company pursuant to one or more
indentures (each, as may be supplemented from time to time, an
"Indenture"), in each case between the Company and State Street Bank
and Trust Company, as trustee (the "Trustee"), which are incorporated
by reference as exhibits to the Registration Statement;
. shares of the Company's senior preferred stock, par value $.01 per
share (the "Preferred Stock"), in one or more series;
. warrants to purchase Debt Securities (the "Warrants"), which are to be
issued under a warrant agreement (the "Warrant Agreement") to be
entered into between the Company and a warrant agent to be selected by
the Company at the time of issuance (the "Warrant Agent"), the form of
which is incorporated by reference as an exhibit to the Registration
Statement; and
. shares of the Company's Class A Common Stock, $0.25 par value per
share (the "Class A Common Stock").
In addition, the Registration Statement relates to the registration of Preferred
Stock and Class A Common Stock that may be issued from time to time upon
conversion of convertible Debt Securities or convertible Preferred Stock. The
Debt Securities may be senior, subordinated or junior subordinated and are
issuable from time to time pursuant to the Indentures. The Debt Securities,
Preferred Stock, Warrants and Class A Common Stock (collectively, the
"Securities") may be issued from time to time, pursuant to Rule 415 under the
Securities Act. Specific terms
<PAGE>
pertaining to the Securities offered by the Company will be determined at or
prior to the time of issuance and will be set forth in one or more supplements
to the prospectus (each, a "Prospectus Supplement") constituting part of the
Registration Statement.
I am familiar with the corporate proceedings of the Company to date with
respect to the proposed issuance and sale of the Securities, and I have examined
such corporate records of the Company and such other documents and certificates
as I have deemed necessary as a basis for the opinions hereinafter expressed,
including:
. the Registration Statement;
. the Amended and Restated Certificate of Incorporation of the Company;
. the Amended and Restated By-Laws of the Company;
. the Indentures;
. the form of the Warrant Agreement;
. the Form T-1 Statements of Eligibility with respect to the Trustee
under the Indentures; and
In connection with this opinion, I have assumed the accuracy and
completeness of all documents and records I have reviewed, the genuineness of
all signatures, the authenticity of the documents submitted to me as originals
and the conformity to authentic original documents of all documents submitted to
me as certified, conformed or reproduced copies.
Based on the foregoing, I am of the opinion that:
1. Upon (i) execution and delivery by the Company and the Trustee of a
supplement to the applicable Indenture (if required), (ii) the adoption by the
Company's Board of Directors or a duly authorized committee thereof of
resolutions authorizing the terms, issuance and delivery of the Debt Securities
as contemplated by the applicable Indenture, (iii) the filing of a Prospectus
Supplement describing the terms of the Debt Securities, as contemplated by the
applicable Indenture, with the Commission pursuant to the Securities Act and the
rules and regulations thereunder and (iv) the execution by the Company,
authentication by the Trustee and delivery by the Company of the Debt
Securities, upon receipt of lawful consideration therefor as determined by the
Company's Board of Directors or a duly authorized committee thereof, in the
manner contemplated by the Registration Statement, any applicable underwriting
or pricing agreement and any applicable Prospectus Supplement, the Debt
Securities will be legally issued and binding obligations of the Company under
the terms of the applicable Indenture.
<PAGE>
2. Upon (i) adoption by the Company's Board of Directors or a duly
authorized committee thereof of the terms of the Preferred Stock, including,
without limitation, the designation, number of shares, dividend rate, any
conversion or exchange rights, any redemption or sinking fund provisions and
liquidation preference thereof, (ii) the Company's execution and filing with the
Secretary of State of Delaware of a Certificate of Designation (containing such
terms as have been approved by the Company's Board of Directors or a duly
authorized committee thereof) and its effectiveness in accordance with the
Delaware General Corporation Law, (iii) the adoption by the Company's Board of
Directors or a duly authorized committee thereof of resolutions authorizing the
issuance of the Preferred Stock, (iv) the filing by the Company of a Prospectus
Supplement describing the terms of the Preferred Stock, as contemplated by the
applicable Certificate of Designation, with the Commission pursuant to the
Securities Act and the rules and regulations thereunder and (v) the execution by
the Company, countersignature by the transfer agent and registrar for the
Preferred Stock and issuance and delivery by the Company of the Preferred Stock,
upon receipt of lawful consideration therefor as determined by the Company's
Board of Directors or a duly authorized committee thereof (or pursuant to
conversion or exchange of Debt Securities or another class or series of
Preferred Stock), in the manner contemplated by the Registration Statement, any
applicable underwriting or pricing agreement and any applicable Prospectus
Supplement, the Preferred Stock will be validly issued, fully paid and
nonassessable.
3. Upon (i) the adoption by the Company's Board of Directors or a duly
authorized committee thereof of resolutions authorizing the issuance of the
Warrants, (ii) the execution and delivery of the Warrant Agreement by the
Company and the Warrant Agent, (iii) the filing by the Company of a Prospectus
Supplement describing the terms of the Warrants, as contemplated by the Warrant
Agreement, with the Commission pursuant to the Securities Act and the rules and
regulations thereunder and (iv) the execution by the Company, countersignature
by the Warrant Agent and delivery by the Company of the Warrants, upon receipt
of lawful consideration therefor as determined by the Company's Board of
Directors or a duly authorized committee thereof, in the manner contemplated by
the Registration Statement, the Warrant Agreement, any applicable underwriting
or pricing agreement and any applicable Prospectus Supplement, the Warrants will
be legally issued and binding obligations of the Company.
4. Upon (i) adoption by the Company's Board of Directors or a duly
authorized committee thereof of resolutions authorizing the issuance of the
Class A Common Stock and (ii) the execution by the Company, countersignature by
the transfer agent and registrar for the Class A Common Stock and issuance and
delivery by the Company of the Class A Common Stock, upon receipt of lawful
consideration therefor as determined by the Company's Board of Directors or a
duly authorized committee thereof (or pursuant to conversion or exchange of
Preferred Stock or Debt Securities, in accordance with the applicable
Certificate of Designation or Indenture, as the case may be), in the manner
contemplated by the Registration Statement, any applicable underwriting or
pricing agreement and any applicable Prospectus Supplement, the Class A Common
Stock will be validly issued, fully paid and nonassessable.
<PAGE>
The foregoing opinions are subject to (i) all bankruptcy, insolvency or
other laws affecting the enforcement of creditors' rights generally and general
equitable principles, (ii) limitations under federal or state securities laws,
or the public policy underlying such laws, with respect to rights to indemnity
or contribution and (iii) my expressing no opinion as to the waiver of the
defense of usury.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of my name in the Registration Statement
and the Prospectus related thereto.
Very truly yours,
/s/ Mark J. Ohringer
Mark J. Ohringer
Deputy General Counsel
<PAGE>
[Letterhead of Arthur Andersen LLP]
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated January 18, 1999
(except with respect to the matters discussed in Note 25, as to which the date
is February 15, 1999) included in Heller Financial, Inc.'s Form 10-K/A for the
year ended December 31, 1998 and to all references to our firm included in this
registration statement.
/s/ ARTHUR ANDERSEN LLP
Chicago, Illinois
August 5, 1999
<PAGE>
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)
STATE STREET BANK AND TRUST COMPANY
(Exact name of trustee as specified in its charter)
Massachusetts 04-1867445
(Jurisdiction of incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification No.)
225 Franklin Street, Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
Maureen Scannell Bateman, Esq. Executive Vice President and General Counsel
225 Franklin Street, Boston, Massachusetts 02110
(617) 654-3253
(Name, address and telephone number of agent for service)
Heller Financial, Inc.
(Exact name of obligor as specified in its charter)
Delaware 36-1208070
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
500 West Monroe Street
Chicago, IL 60661
(Address of principal executive offices) (Zip Code)
Senior Debt Securities, Subordinated Debt Securities and Junior Subordinated
Debt Securities
(Title of indenture securities)
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervisory authority to
which it is subject.
Department of Banking and Insurance of The Commonwealth of
Massachusetts, 100 Cambridge Street, Boston, Massachusetts.
Board of Governors of the Federal Reserve System, Washington,
D.C., Federal Deposit Insurance Corporation, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Trustee is authorized to exercise corporate trust powers.
Item 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 or of its parent,
State Street Corporation.
(See note on page 2.)
Item 3. through Item 15. Not applicable.
Item 16. List of Exhibits.
List below all exhibits filed as part of this statement of eligibility.
1. A copy of the articles of association of the trustee as now in
effect.
A copy of the Articles of Association of the trustee, as now in
effect, is on file with the Securities and Exchange Commission as
Exhibit 1 to Amendment No. 1 to the Statement of Eligibility and
Qualification of Trustee (Form T-1) filed with the Registration
Statement of Morse Shoe, Inc. (File No. 22-17940) and is
incorporated herein by reference thereto.
2. A copy of the certificate of authority of the trustee to commence
business, if not contained in the articles of association.
A copy of a Statement from the Commissioner of Banks of
Massachusetts that no certificate of authority for the trustee to
commence business was necessary or issued is on file with the
Securities and Exchange Commission as Exhibit 2 to Amendment No.
1 to the Statement of Eligibility and Qualification of Trustee
(Form T-1) filed with the Registration Statement of Morse Shoe,
Inc. (File No. 22-17940) and is incorporated herein by reference
thereto.
3. A copy of the authorization of the trustee to exercise corporate
trust powers, if such authorization is not contained in the documents
specified in paragraph (1) or (2), above.
A copy of the authorization of the trustee to exercise corporate
trust powers is on file with the Securities and Exchange
Commission as Exhibit 3 to Amendment No. 1 to the Statement of
Eligibility and Qualification of Trustee (Form T-1) filed with
the Registration Statement of Morse Shoe, Inc. (File No. 22-
17940) and is incorporated herein by reference thereto.
4. A copy of the existing by-laws of the trustee, or instruments
corresponding thereto.
A copy of the by-laws of the trustee, as now in effect, is on
file with the Securities and Exchange Commission as Exhibit 4 to
the Statement of Eligibility and Qualification of Trustee (Form
T-1) filed with the Registration Statement of Eastern Edison
Company (File No. 33-37823) and is incorporated herein by
reference thereto.
1
<PAGE>
5. A copy of each indenture referred to in Item 4. if the obligor is in
default.
Not applicable.
6. The consents of United States institutional trustees required by
Section 321(b) of the Act.
The consent of the trustee required by Section 321(b) of the Act
is annexed hereto as Exhibit 6 and made a part hereof.
7. A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or examining
authority.
A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or
examining authority is annexed hereto as Exhibit 7 and made a
part hereof.
NOTES
In answering any item of this Statement of Eligibility which relates to
matters peculiarly within the knowledge of the obligor or any underwriter of the
obligor, the trustee has relied upon the information furnished to it by the
obligor and the underwriters, and the trustee disclaims responsibility for the
accuracy or completeness of such information.
The answer to Item 2. of this statement will be amended, if necessary, to
reflect any facts which differ from those stated and which would have been
required to be stated if known at the date hereof.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, State Street Bank and Trust Company, a corporation duly
organized and existing under the laws of The Commonwealth of Massachusetts, has
duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Boston and The
Commonwealth of Massachusetts, on the 4th day of August, 1999.
STATE STREET BANK AND TRUST COMPANY
By: /s/ Kathy A. Larimore
---------------------------------------
NAME Kathy A. Larimore
TITLE Assistant Vice President
2
<PAGE>
EXHIBIT 6
CONSENT OF THE TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture Act
of 1939, as amended, in connection with the proposed issuance by Heller
Financial, Inc. of its Senior Debt Securities, Subordinated Debt Securities and
Junior Subordinated Debt Securities, we hereby consent that reports of
examination by Federal, State, Territorial or District authorities may be
furnished by such authorities to the Securities and Exchange Commission upon
request therefor.
STATE STREET BANK AND TRUST COMPANY
By: /s/ Kathy A. Larimore
--------------------------------------
NAME Kathy A. Larimore
TITLE Assistant Vice President
Dated: August 4, 1999
3
<PAGE>
EXHIBIT 7
Consolidated Report of Condition of State Street Bank and Trust Company,
Massachusetts and foreign and domestic subsidiaries, a state banking institution
organized and operating under the banking laws of this commonwealth and a member
of the Federal Reserve System, at the close of business March 31, 1999,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act and in accordance
with a call made by the Commissioner of Banks under General Laws, Chapter 172,
Section 22(a).
<TABLE>
<CAPTION>
Thousands of
ASSETS Dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin.......... 1,249,670
Interest-bearing balances................................... 13,236,699
Securities....................................................... 10,970,415
Federal funds sold and securities purchased
under agreements to resell in domestic offices
of the bank and its Edge subsidiary......................... 9,561,556
Loans and lease financing receivables:
Loans and leases, net of unearned income ......... 7,053,580
Allowance for loan and lease losses............... 85,416
Allocated transfer risk reserve................... 0
Loans and leases, net of unearned income and allowances..... 6,968,164
Assets held in trading accounts.................................. 1,553,354
Premises and fixed assets........................................ 536,535
Other real estate owned.......................................... 0
Investments in unconsolidated subsidiaries....................... 606
Customers' liability to this bank on acceptances outstanding..... 71,273
Intangible assets................................................ 207,323
Other assets..................................................... 1,371,043
----------
Total assets..................................................... 45,726,638
==========
LIABILITIES
Deposits:
In domestic offices......................................... 10,101,297
Noninterest-bearing...................... 6,932,549
Interest-bearing......................... 3,168,748
In foreign offices and Edge subsidiary...................... 18,061,721
Noninterest-bearing...................... 54,654
Interest-bearing......................... 18,007,067
Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of
the bank and of its Edge subsidiary......................... 12,063,069
Demand notes issued to the U.S. Treasury......................... 149,322
Trading liabilities......................................... 1,140,080
Other borrowed money............................................. 285,027
Subordinated notes and debentures................................ 0
Bank's liability on acceptances executed and outstanding......... 71,273
Other liabilities................................................ 1,079,470
Total liabilities................................................ 42,951,259
----------
EQUITY CAPITAL
Perpetual preferred stock and related surplus.................... 0
Common stock..................................................... 29,931
Surplus.......................................................... 480,330
Undivided profits and capital reserves/Net unrealized
holding gains (losses)......................................... 2,258,177
Net unrealized holding gains (losses) on available-for-sale
securities.................................................. 15,937
Cumulative foreign currency translation adjustments.............. (8,996)
Total equity capital............................................. 2,775,379
----------
Total liabilities and equity capital............................. 45,726,638
----------
</TABLE>
4
<PAGE>
I, Rex S. Schuette, Senior Vice President and Comptroller 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.
Rex S. Schuette
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 is true and
correct.
David A. Spina
Marshall N. Carter
Truman S. Casner
5
