As filed with the Securities and Exchange Commission on November 19, 1996
Registration No. 33-
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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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WHITMAN CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 36-6076573
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3501 Algonquin Road
Rolling Meadows, Illinois 60008
(847) 818-5000
(Address, including zip code, and telephone number, including a
registrant's principal executive offices)
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WILLIAM B. MOORE
Vice President, Secretary and General Counsel
Whitman Corporation
3501 Algonquin Road
Rolling Meadows, Illinois 60008
(847) 818-5000
(Name, address, including zip code, and telephone number, including area
code of agent for service)
Copies to:
JIM L. KAPUT H. KURT VON MOLTKE
Sidley & Austin Kirkland & Ellis
One First National Plaza 200 East Randolph Drive
Chicago, Illinois 60603 Chicago, Illinois 60601
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Approximate date of commencement of sale to 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/
CALCULATION OF REGISTRATION
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Proposed Proposed
Title of each class Amount maximum maximum Amount of
class of securities to be offering price aggregate registration
to be registered registered(1 per share(2) offering price(2) fee
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Debt Securities $200,000,000 100% $200,000,000 $60,606
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(1) Includes Debt Securities issued with an original issue discount such
that the aggregate initial public offering price of all Debt Securities
will not exceed $200,000,000 (the initial public offering price of any
Debt Securities issued for any foreign currency or currency units shall
be the U.S. dollar equivalent thereof).
(2) Estimated solely for the purpose of calculating the registration
fee.
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Pursuant to Rule 429 under the Securities Act of 1933, the
Prospectus constituting a part of this Registration Statement also
relates to $88,000,000 principal amount of Debt Securities registered
by the Registrant under the Securities Act of 1933 in Registration
Statement No. 33-58209 and this Registration Statement constitutes
Post-Effective Amendment No. 1 to such Registration Statement.
The Registrant hereby amends this Registration Statement on such
date or dates as may be necessary to delay its effective date until the
registrant shall file a further amendment which specifically states
that this Registration Statement shall thereafter become effective in
accordance with Section 8(a) of the Securities Act of 1933 or until
this Registration Statement shall become effective on such date as the
Commission, acting pursuant to said Section 8(a), may determine.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD
NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION
STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN
OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE
ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH SUCH OFFER,
SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR
QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
PRELIMINARY PROSPECTUS DATED NOVEMBER 19, 1996
SUBJECT TO COMPLETION
PROSPECTUS
LOGO
WHITMAN CORPORATION
$288,000,000
DEBT SECURITIES
Whitman Corporation ("Whitman" or the "Company") may offer from time
to time its unsecured debentures, notes or other evidences of
indebtedness ("Securities"), in one or more series, in amounts, at prices
and on terms to be determined at the time of sale, from which the Company
will receive up to an aggregate of $288,000,000 in proceeds, or the
equivalent thereof if any of the Securities are denominated in one or
more foreign currencies or currency units. The Securities may be sold to
underwriters, to or through dealers, acting as principals or acting as
agents, or directly to other purchasers (see "Plan of Distribution").
The Securities may be issued in registered form without coupons, or
in unregistered form with or without coupons. In addition, all or a
portion of the Securities may be issued in temporary or definitive global
form. Securities which are book-entry Securities will be issued in
registered global form.
The specific designation, aggregate principal amount, designated
coin, currency or currencies, or currency unit or units in which the
principal, any premium or any interest is payable, authorized
denominations, purchase price, maturity, interest rate (which may be
fixed or variable) and time of payment of any interest, any redemption
terms or other special terms and the terms of the offering in connection
with the sale of the Securities in respect of which this Prospectus is
being delivered, together with the names of any underwriters, dealers or
agents, applicable commissions or discounts and net proceeds to the
Company from the sale thereof, are set forth in the accompanying
Prospectus Supplement ("Prospectus Supplement").
This Prospectus may not be used to consummate sales of Securities
unless accompanied by a Prospectus Supplement.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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The date of this Prospectus is November , 1996.
No person is authorized to give any information or to make any
representations other than those contained or incorporated by reference
in this Prospectus or any Prospectus Supplement in connection with any
offering contemplated hereby or thereby and, if given or made, such
information or representations must not be relied upon as having been
authorized. Neither this Prospectus nor any Prospectus Supplement
constitutes an offer to sell or a solicitation of an offer to buy any
securities other than the registered securities to which it relates or an
offer to sell or a solicitation of an offer to buy such securities in any
jurisdiction to any person to whom it is unlawful to make such offer or
solicitation in such jurisdiction. Neither the delivery of this
Prospectus or any Prospectus Supplement nor any sale made hereunder or
thereunder shall, under any circumstances, create any implication that
there has been no change in the affairs of the Company since the date
hereof or thereof or that the information contained or incorporated by
reference herein or therein is correct as of any time subsequent to its
date.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and in
accordance therewith files reports, proxy statements and other
information with the Securities and Exchange Commission (the
"Commission"). Such reports, proxy statements and other information filed
by the Company with the Commission may be inspected and copied at the
public reference facilities maintained by the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the following Regional
Offices of the Commission: Northeast Regional Office, 7 World Trade
Center, Suite 1300, New York, New York 10048; and Midwest Regional
Office, Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661-2511. Copies of such material can also be obtained from
the Public Reference Section of the Commission, at 450 Fifth Street,
N.W., Washington, D.C. 20549, at prescribed rates. The Company is subject
to the electronic filing requirements of the Commission. Accordingly,
pursuant to the rules and regulations of the Commission, certain
documents, including annual and quarterly reports and proxy statements,
filed by the Company with the Commission have been or will be filed
electronically. The Commission maintains a World Wide Web site that
contains reports, proxy and information statements and other information
regarding registrants that file electronically with the Commission at
(http://www.sec.gov).
Such reports, proxy statements and other information concerning the
Company can be inspected at the offices of the national securities
exchanges on which the Company's Common Stock is listed: New York Stock
Exchange, 20 Broad Street, New York, New York 10005; Chicago Stock
Exchange, 440 South LaSalle Street, Chicago, Illinois 60605; and the
Pacific Stock Exchange, 301 Pine Street, San Francisco, California 94104.
This Prospectus does not contain all the information set forth in the
Registration Statement and exhibits thereto which the Company has filed
with the Commission under the Securities Act of 1933, as amended (the
"Securities Act"), to which reference is hereby made.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the year ended December
31, 1995, and the Company's Quarterly Reports on Form 10-Q for the
quarters ended March 31, 1996, June 30, 1996 and September 30, 1996, each
of which is filed with the Commission, are incorporated by reference in
this Prospectus.
All documents filed by the Company pursuant to Section 13(a), 13(c),
14 or 15(d) of the 1934 Act subsequent to the date of this Prospectus and
prior to the termination of the offering of the Securities shall be
deemed to be incorporated by reference into this Prospectus and to be a
part hereof from the respective dates of filing of such documents. Any
statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document which also
is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified and superseded, to constitute
a part of this Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon written or oral request of such person, a
copy of any and all of the information that has been incorporated by
reference in this Prospectus, excluding exhibits. Such requests should be
directed to Corporate Communications Department, Whitman Corporation,
3501 Algonquin Road, Rolling Meadows, Illinois 60008, telephone: (847)
818-5000.
THE COMPANY
Whitman is a holding company which conducts its business through
three principal subsidiaries: Pepsi-Cola General Bottlers, Inc.
("Pepsi General"), Midas International Corporation ("Midas"), and
Hussmann Corporation ("Hussmann"). The Company's principal executive
offices are located at 3501 Algonquin Road, Rolling Meadows,
Illinois 60008, telephone: (847) 818-5000.
In 1988, the Company changed its name from IC Industries, Inc. to
Whitman Corporation and sold its aerospace and defense subsidiary (Pneumo
Abex Corporation). In 1989, the Company spun off to its shareholders its
railroad operations (Illinois Central Railroad Company). In 1991, the
Company spun off to its shareholders all of the common stock of Pet
Incorporated, a specialty foods company.
Pepsi General
Pepsi General is the largest independent Pepsi bottler in the
United States. Pepsi General packages and distributes Pepsi-Cola
products, including Pepsi, Diet Pepsi, Caffeine Free Pepsi, Caffeine
Free Diet Pepsi, Wild Cherry Pepsi, Mountain Dew, Diet Mountain Dew,
Mug Root Beer, Slice and All Sport, under exclusive franchises in
markets in 12 states in the North-Central United States with a
population of approximately 25 million people. Pepsi General also
packages and sells other beverages in some markets, including Seven-
Up, Dr Pepper, Canada Dry, Hawaiian Punch, Ocean Spray and Lipton's
Tea.
Pepsi General's franchises grant it the exclusive right to produce
and sell the products and use the related trade names and trademarks in
the franchised territories. The franchises require Pepsi General, among
other things, to purchase its concentrate requirements solely from the
franchisor at prices established by the franchisor, and to promote
diligently the sale and distribution of the franchised products.
Packaging materials (bottles, bottle caps, cans, cartons and cases) are
obtained from manufacturers approved by the franchisor and other items
are purchased in the general market. The franchises are for an indefinite
term and are subject to termination upon failure to comply with the
provisions of the franchise agreement.
Products are distributed by Pepsi General to retail outlets primarily
by trucks operated by Pepsi General route salesmen. Pepsi General also
owns, leases or sells the vending machines which dispense its soft drink
products in factories, offices, schools, stores, gasoline stations and
other locations. Pepsi General's facilities include seven bottling
plants, three canning plants, three combination bottling/canning plants
and more than 60 warehouses and distribution facilities.
As the result of an agreement entered into in 1987, Pepsi General is
80% owned by Whitman and 20% owned by a subsidiary of PepsiCo, Inc.
("PepsiCo"), which is the franchisor of Pepsi-Cola products. While Pepsi
General manages all phases of its operations, including pricing of its
products, PepsiCo and Pepsi General exchange production, marketing, and
distribution information.
In 1994, PepsiCo granted Pepsi General a franchise for the
distribution of Pepsi-Cola products in the western and northern areas of
Poland for an initial term of 15 years. Pepsi General has made capital
investments of approximately $90 million in Poland, and expects to incur
losses in Poland over the next few years as this new venture is
developed. Such losses are not expected to be material to the
consolidated operating results of the Company. In April 1996, the Company
announced it had reached an agreement in principle with PepsiCo to
distribute Pepsi products in northwestern areas of the former Soviet
Union, which includes St. Petersburg, as well as the Baltic Republics.
Midas
Midas operates the world's largest franchised dealer network
specializing in under-the-car services. Midas services automotive exhaust
systems, steering/suspension systems and brakes through approximately
2,600 franchised and company-owned shops operating in 15 countries.
Approximately 87% of the shops are franchised and the remainder are
company-owned.
Four domestic manufacturing plants produce nearly 1,800 different
types of mufflers and more than 2,700 types of exhaust and tail pipes
which will fit nearly 96% of the cars and light trucks--both foreign and
domestic--on the road today in the U.S. The principal source of Midas'
revenue is derived from its network of franchised and company-owned and
operated retail shops. Midas collects an initial franchise fee and
receives yearly royalties based upon the franchisees' gross revenues. In
addition, Midas generates revenues from the sale of manufactured mufflers
and tubing, and from the resale of purchased parts (primarily brakes,
shocks and front-end alignment components) to its franchisees. Midas also
sells its manufactured exhaust system parts under other brand names to
automotive parts distributors, jobbers and automobile accessory stores
and its fabricated tube-bending equipment to jobbers and retail
installers.
Midas' warranty of mufflers, brakes and shocks is particularly
important to its marketing program. Competitors include automotive
service centers of retail chain stores, muffler shops, automotive
dealers, gasoline stations and independent repair shops.
Hussmann
Hussmann produces merchandising and refrigeration systems for
supermarkets and other food stores. Products include refrigerated display
cases, commercial/industrial refrigeration systems, storage coolers,
bottle coolers, walk-in coolers, and heating, ventilating and air
conditioning equipment. Hussmann is the market leader in North America,
and has substantial operations in the United Kingdom. Its customers
include independent and chain-owned supermarkets, other grocery stores
and convenience/specialty stores.
Hussmann operates 20 manufacturing facilities in the United States,
Mexico, Canada, Chile, China and the United Kingdom, and also operates a
number of branch facilities which sell, install and service Hussmann
products. Hussmann products are marketed internationally by both Hussmann
sales personnel and independent distributors.
RATIOS OF EARNINGS TO FIXED CHARGES
Nine Months
Ended
September 30 Years Ended December 31
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1996 1995 1995 1994 1993 1992 1991
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Ratio of Earnings
to Fixed Charges(1) 4.4x 4.0x 4.0x 3.6x 3.0x 2.6x 2.2x
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(1) The ratio of earnings to fixed charges for the Company is defined as
income before provision for income taxes and minority interest plus
interest expense (including amortization of debt issuance expense),
and the portion of rental expense which represents interest (deemed
to be one-third of rentals) divided by fixed charges. Fixed charges
include interest expense (including capitalized interest and
amortization of debt issuance expense) and the portion of rental
expense which represents interest.
USE OF PROCEEDS
Except as otherwise set forth in the applicable Prospectus
Supplement, the net proceeds from the sale of the Securities will be used
for general corporate purposes, including the repayment of indebtedness.
DESCRIPTION OF SECURITIES
The following description of the Securities sets forth certain
general terms and provisions to which any Prospectus Supplement may
relate. The particular terms of Securities being offered and the
extent to which such general provisions apply are described in the
Prospectus Supplement relating thereto.
The Securities are to be issued under an Indenture dated as of
January 15, 1993 (the "Indenture"), between the Company and The First
National Bank of Chicago, as Trustee ("Trustee"). The Indenture is filed
as an exhibit to the Registration Statement. The following summary of
certain provisions of the Securities and the Indenture is subject to, and
is qualified in its entirety by, all of the provisions of the Indenture.
Article and section references in parentheses are to the Indenture.
Wherever particular provisions (including definitions) of the Indenture
are referred to, such provisions are incorporated by reference as a part
of the statements made, and the statements are qualified in their
entirety by such reference.
General
The Securities will be unsecured and will rank on a parity with all
other unsecured and unsubordinated indebtedness of the Company. The
Indenture provides that the Securities may be issued thereunder from time
to time in one or more series and does not limit the aggregate principal
amount of the Securities or of any particular series of Securities.
The Securities may be issued in fully registered form without coupons
or in unregistered form with or without coupons. The Securities may also
be issued in the form of one or more temporary or definitive global
securities (each a "Global Security"). Registered Securities which are
book-entry securities will be issued as registered Global Securities.
Unregistered Securities may also be issued in the form of temporary or
definitive Global Securities.
The Securities may be denominated in U.S. dollars, or in any other
currency or currency unit. If any of the Securities are sold for any
foreign currency or currency unit or if principal of (and premium, if
any) and interest, if any, on any of the Securities are payable in any
foreign currency or currency unit, the restrictions, elections, tax
consequences, specific terms and other information with respect to such
issue of Securities and such foreign currency or currency unit will be
set forth in the Prospectus Supplement relating thereto.
Reference is made to the Prospectus Supplement for the following
terms of a series of Securities being offered: (a) the title of such
Securities; (b) the aggregate principal amount of Securities; (c) the
rate or rates (which may be fixed or variable) at which the Securities
will bear interest, if any, or the method of determining any interest,
the date or dates from which any such interest will accrue, the date or
dates on which any such interest will be payable, and the record date for
the interest payable on any interest payment date; (d) the date or dates
of maturity; (e) the period or periods within which, the price or prices
at which, and the terms and conditions upon which, the Company may redeem
the Securities; (f) the obligation, if any, of the Company to redeem the
Securities pursuant to a sinking fund or at the option of the holder and
the period or periods within which, the price or prices at which, and the
terms and conditions upon which, the Securities will be redeemed; (g) the
portion of the principal amount of the Securities due upon acceleration
of maturity in the event of a default; (h) the denominations in which the
Securities will be issuable if other than denominations of $1,000 if
registered and $5,000 if unregistered; (i) the form used to evidence
ownership of the Securities; (j) information with respect to conversion
of the Securities, if convertible; (k) the places where the principal
(and premium, if any) and interest, if any, are payable; (1) additional
offices or agencies for registration of transfer and exchange and for
payment of the principal (and premium, if any) and interest, if any; (m)
whether the Securities will be issued as registered Securities, or as
unregistered Securities, including temporary and definitive Global
Securities, the depositary for any Global Security, and the
circumstances, if any, upon which such Securities may be exchanged for
Securities issued in a different form; (n) if other than U.S. dollars,
the coin, currency or currencies, or currency unit or units for which the
Securities may be purchased and in which the payment of principal of (and
premium, if any) and interest, if any, on such Securities will be made;
(o) if the Company or the holders of such Securities may elect payment in
a coin, currency or currencies, or currency unit or units other than that
in which such Securities are denominated, then the period or periods
within which, and the terms and conditions upon which, such election may
be made and any provision requiring the holders to bear currency exchange
costs; (p) if the amount of any payment on the Securities may be
determined with reference to a currency, currency unit, commodity or
financial or non-financial index or indices, then the manner in which any
such amount shall be determined; (q) whether and under what circumstances
the Company will pay additional amounts to any holder of such Securities
who is not a U.S. person in respect of any tax, assessment or
governmental charge required to be withheld or deducted and, if so,
whether the Company will have the option to redeem such Securities rather
than pay any additional amounts; (r) the person to whom any interest on a
registered Security will be payable if other than as registered on the
record date, the manner in which or person to whom any interest on an
unregistered Security will be payable if other than upon surrender of the
appropriate coupon and the manner in which any interest on a Global
Security will be paid; (s) whether defeasance and discharge provisions
will not apply to the Securities; and (t) any other terms not
inconsistent with the Indenture. (Section 2.01)
Unless otherwise indicated in the Prospectus Supplement, principal
(and premium, if any) and interest, if any, will be payable, and the
Securities covered thereby may be registered for transfer or exchange, at
the principal corporate trust office of the Trustee in Chicago, Illinois,
provided that at the option of the Company, payment of interest on
registered Securities may be made by check mailed to the address of the
person entitled thereto as it appears on the Security Register or by wire
transfer as instructed by the person entitled thereto. (Sections 4.01 and
4.02) No service charge will be made for any exchange or registration of
transfer of the Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge. (Section 2.06)
Global Securities
Securities of a series may be issued in whole or in part as one or
more Global Securities that will be deposited with, or on behalf of, a
depositary identified in the Prospectus Supplement relating to such
series. Global Securities may be issued in either registered or
unregistered form and in either temporary or definitive form. (Section
2.01) The specific terms of the depositary arrangement with respect to
any Global Security of a series will be described in the Prospectus
Supplement relating to such series.
Limitation on Liens
The Indenture provides that neither the Company nor any Restricted
Subsidiary (as defined below) will issue, assume or guarantee any notes,
bonds, debentures or other similar evidences of indebtedness for money
borrowed ("Debt") secured by a mortgage, security interest, lien, pledge
or other encumbrance ("liens") upon any Principal Property (as defined
below), or on any shares of stock or indebtedness of any Restricted
Subsidiary (whether such Principal Property, shares of stock or
indebtedness are now owned or hereafter acquired), without effectively
providing that the Securities (together with, if the Company so
determines, any other indebtedness or obligation then existing or
thereafter created, ranking equally with the Securities) shall be secured
equally and ratably with (or prior to) such Debt so long as such Debt is
so secured. This restriction will not apply to (a) liens affecting
property of a corporation existing at the time it becomes a Subsidiary
(as defined below) of the Company or at the time it is merged into or
consolidated with or purchased by the Company or a Subsidiary; (b) liens
existing at the time of acquisition of the property affected thereby or
purchase money liens incurred within 180 days after acquisition of the
property; (c) liens to secure the cost of construction of new plants or
facilities, incurred within 180 days of completion of construction; (d)
liens which secure indebtedness owing by a Restricted Subsidiary to the
Company or another Restricted Subsidiary; (e) liens existing on the date
of the Indenture; (f) liens in connection with the issuance of certain
pollution control or industrial revenue bonds or similar financings; (g)
certain statutory liens or similar liens arising in the ordinary course
of business; (h) certain liens in connection with legal proceedings and
government contracts and certain deposits or liens made to comply with
workers' compensation or similar legislation; (i) liens existing on
property acquired by the Company or a Restricted Subsidiary through the
exercise of rights arising out of defaults on receivables acquired in the
ordinary course of business; (j) liens for certain judgments and awards;
(k) liens for certain taxes, assessments, governmental charges or other
liens of a similar nature, which do not materially impair the use of such
property in the operation of the business of the Company or a Restricted
Subsidiary or the value of such property for the purposes of such
business; and (l) certain extensions, renewals or replacements of any
liens referred to in the foregoing clauses (a) through (k). (Section
4.05) See also "Exempted Indebtedness" below.
Limitation on Sale and Lease-Back
The Indenture provides that neither the Company nor any Restricted
Subsidiary will enter into any sale and lease-back transaction with
respect to any Principal Property (except for temporary leases of a term,
including renewals, not exceeding five years) unless either (a) the
Company or such Restricted Subsidiary would be entitled, pursuant to the
provisions of Section 4.05, to incur Debt secured by a lien on the
property to be leased without equally and ratably securing the
Securities, or (b) the Company within 180 days after the effective date
of such transaction applies to the voluntary retirement of its funded
debt an amount equal to the value of such transaction, defined as the
greater of the net proceeds of the sale of the property leased in such
transaction or the fair value, in the opinion of the Board of Directors,
of the leased property at the time such transaction was entered into.
(Section 4.06) See also "Exempted Indebtedness" below.
Definitions
The term "Principal Property" means any manufacturing plant or
warehouse owned or leased by the Company or any Subsidiary located within
the United States of America, the gross book value of which exceeds one
percent of Consolidated Net Worth (as defined below), other than
manufacturing plants and warehouses which the Board of Directors by
resolution declares, together with all other plants and warehouses
previously so declared, is not of material importance to the total
business conducted by the Company and its Restricted Subsidiaries as an
entirety. The term "Restricted Subsidiary" is defined to mean any
Subsidiary which owns or leases a Principal Property and substantially
all the property of which is located, or substantially all of the
business of which is carried on, within the United States of America or
which is incorporated under the laws of any state of the United States of
America. The term "Subsidiary" means any corporation at least a majority
of the outstanding securities of which having ordinary voting power to
elect a majority of the board of directors of such corporation (whether
or not any other class of securities has or might have voting power by
reason of the occurrence of a contingency) is at the time owned or
controlled, directly or indirectly, by the Company, by one or more
Subsidiaries or by the Company and one or more Subsidiaries. (Article
One). The term "Consolidated Net Worth" means the excess of assets over
liabilities of the Company and its consolidated Subsidiaries, plus
Minority Interests, as determined from time to time in accordance with
generally accepted accounting principles consistently applied. The term
"Minority Interest" is defined as any shares of stock of any class of a
Subsidiary (other than directors' qualifying shares) that are not owned
by the Company or a Subsidiary. (Section 6.01)
Exempted Indebtedness
Notwithstanding the foregoing limitations on liens and sale and
lease-back transactions, the Company and its Restricted Subsidiaries may
issue, assume, or guarantee Debt secured by a lien without securing the
Securities, or may enter into sale and lease-back transactions without
retiring funded debt, or enter into a combination of such transactions,
if the sum of the principal amount of all such Debt and the aggregate
value of all such sale and lease-back transactions does not at any such
time exceed 10% of the consolidated total assets of the Company and its
consolidated Subsidiaries as shown in the audited consolidated balance
sheet contained in the latest annual report to the shareholders of the
Company. (Section 4.07)
Defeasance
Unless otherwise provided in the applicable Prospectus Supplement,
the following defeasance provisions will apply to the Securities being
offered thereby.
Satisfaction and Discharge. The Indenture provides that, unless
inapplicable to any series of Securities, the Company will be discharged
from any and all obligations in respect of the Securities of any series
(except, among other things, for certain obligations to register the
transfer or exchange of Securities of such series, to replace stolen,
lost, destroyed or mutilated Securities of such series, to maintain
paying agencies and to hold monies for payment in trust), if the Company
shall deposit with the Trustee, in trust, money and/or Government
Obligations which through the payment of interest and principal in
respect thereof in accordance with their terms will provide money in an
amount sufficient to pay the principal of (and premium, if any) and each
installment of interest on the Securities of such series on the due date
of such payments in accordance with the terms of the Indenture and the
Securities of such series. Such a trust may only be established if, among
other things, the Company has delivered to the Trustee an opinion of
counsel of recognized national standing to the effect that holders of the
Securities of such series will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit, satisfaction and
discharge and will be subject to federal income tax on the same amount
and in the same manner and at the same times, as would have been the case
if such deposit, defeasance and discharge had not occurred. (Section
12.02(a)) The term "Government Obligations" with respect to any series of
Securities means direct noncallable obligations of the government which
issued the currency in which the Securities of that series are
denominated or noncallable obligations the payment of the principal of
and interest on which is fully guaranteed by such government and which,
in either case, are full faith and credit obligations of such government.
(Article One)
Defeasance of Certain Covenants and Certain Events of Default. The
Indenture provides that, unless inapplicable to any series of Securities,
the Company may omit to comply with certain covenants in Sections 4.05
(Limitation on Liens), 4.06 (Limitation on Sale and Lease-back) and 4.07
(Exempted Indebtedness) and Article Eleven (Consolidation, Merger, Sale,
Conveyance or Lease) if the Company shall deposit with the Trustee, in
trust, money and/or Government Obligations which through the payment of
interest and principal in respect thereof in accordance with their terms
will provide money in an amount sufficient to pay the principal of (and
premium, if any) and each installment of interest on the Securities of
such series on the due date of such payments in accordance with the terms
of the Indenture and the Securities of such series. All obligations of
the Company under the Indenture and the Securities of such series other
than with respect to the covenants referred to above and all Events of
Default other than with respect to such covenants shall remain in full
force and effect. Such a trust may only be established if, among other
things, the Company has delivered to the Trustee an opinion of counsel of
recognized national standing to the effect that the holders of the
Securities of such series will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit and defeasance of
certain covenants and Events of Default and will be subject to federal
income tax on the same amount and in the same manner and at the same
times, as would have been the case if such deposit and defeasance had not
occurred. (Section 12.02(b))
Defeasance and Certain Other Events of Default. In the event the
Company exercises its option to omit to comply with Sections 4.05, 4.06
and 4.07 and Article Eleven of the Indenture with respect to the
Securities of any series as described above and the Securities of such
series are declared due and payable because of the occurrence of any
Event of Default other than default with respect to Sections 4.05, 4.06
and 4.07 and Article Eleven as referred to above, the amount of money and
Government Obligations on deposit with the Trustee will be sufficient to
pay amounts payable on the Securities of such series on their respective
due dates without such acceleration, but may not be sufficient to pay
amounts due on the Securities of such series at the time of the
acceleration resulting from such Event of Default. However, the Company
would remain liable for such payments.
Merger, Consolidation and Sale of Assets
The Company may consolidate with, or merge into, or sell, lease or
convey all or substantially all of its assets to, any person, if, among
other things, (i) the Company is the continuing corporation or the
successor is a U.S. corporation which assumes all the obligations of the
Company under the Securities and under the Indenture and (ii) after
giving effect thereto, no Event of Default under the Indenture or no
event which, after notice or lapse of time or both, would become an Event
of Default shall have occurred and be continuing. (Section 11.01) With
respect to the sale of assets referred to in the foregoing sentence, the
phrase "all or substantially all" as used in the Indenture varies
according to the facts and circumstances of the subject transaction, has
no clearly established meaning under Illinois law (which governs the
Indenture) and is subject to judicial interpretation. Accordingly, in
certain circumstances there may be a degree of uncertainty in
ascertaining whether a particular transaction would involve a disposition
of all or substantially all of the Company's assets and therefore it may
be unclear whether such a disposition has occurred.
Unless otherwise described in a Prospectus Supplement, there are no
covenants or provisions contained in the Indenture which may afford the
holders of Securities of a series with protection in the event of a
highly leveraged transaction involving the Company. Accordingly, the
Company could in the future enter into transactions that could increase
the amount of Debt outstanding at that time or otherwise affect the
Company's capital structure or credit rating.
Events of Default
An Event of Default with respect to any series of Securities is
defined as being: default for 30 days in payment of interest, if any, on
any Security of that series; default in payment of principal (or premium,
if any) on any Security of that series as and when the same becomes due;
default by the Company in the performance of any of the other covenants
in Securities of that series or in the Indenture relating to Securities
of that series which shall not have been remedied within a period of 90
days after notice to the Company by the Trustee or holders of at least
25% in aggregate principal amount of the Securities of that series then
outstanding; certain events of bankruptcy, insolvency or reorganization
of the Company; or acceleration of any indebtedness for money borrowed by
the Company or any Restricted Subsidiary in excess of the greater of
$30,000,000 in aggregate principal amount or 5% of the Consolidated Net
Worth of the Company. (Section 6.01) No Event of Default with respect to
the Securities of a particular series constitutes an Event of Default
with respect to any other series. Additional Events of Default may be
prescribed for the benefit of holders of certain series of Securities and
described in the Prospectus Supplement relating to such Securities. The
Indenture provides that the Trustee will notify the holders of Securities
of each series of Events of Default known to it and affecting that series
within 90 days after the occurrence thereof; provided that, except in the
case of default in the payment of principal (and premium, if any) and
interest, if any, or in the making of any sinking fund payment, the
Trustee will be protected in withholding such notice if it in good faith
determines that the withholding of such notice is in the interest of the
holders of such Securities. (Section 7.02)
The Indenture provides that if an Event of Default with respect to
any series of Securities shall have occurred and be continuing, either
the Trustee or the holders of at least 25% in aggregate principal amount
of Securities of that series then outstanding may declare, upon written
notice, the principal amount (or, if the Securities of that series are
Original Issue Discount Securities, such portion of the principal amount
as may be specified in the terms of that series) of all the Securities of
that series to be immediately due and payable, but upon certain
conditions such declaration may be annulled and past defaults (except,
unless theretofore cured, a default in payment of principal of (and
premium, if any) and interest, if any, on Securities of that series) may
be waived by the holders of a majority in principal amount of the
Securities of that series then outstanding. (Section 6.02)
Subject to the provisions of the Indenture relating to the duties of
the Trustee, in case an Event of Default with respect to any series of
Securities shall occur and be continuing, the Trustee will be under no
obligation to exercise any of the rights or powers in the Indenture at
the request or direction of any of the holders of that series, unless
such holders shall have offered to the Trustee reasonable security or
indemnity. (Sections 7.01 and 7.03) The holders of a majority in
principal amount of the Securities of each series affected by an Event of
Default and then outstanding have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the
Trustee under the Indenture or exercising any trust or power conferred on
the Trustee with respect to the Securities of that series. (Section 6.12)
Modification of the Indenture
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than a majority in
principal amount of the Securities of each series at the time
outstanding, to execute supplemental indentures adding any provisions to,
or changing in any manner or eliminating any of the provisions of, the
Indenture or any supplemental indenture with respect to the Securities of
such series; provided that no such supplemental indenture may, among
other things (a) extend the maturity of any Security, or reduce the
principal amount thereof, or reduce the rate or extend the time of
payment of any interest thereon, or reduce any premium payable upon the
redemption thereof, or change the currency in which any Security is
payable, without the consent of the holder of each Security so affected,
or (b) reduce the aforesaid majority in principal amount of the
Securities of such series, the consent of the holders of which is
required for any such supplemental indenture, without the consent of the
holders of all Securities of such series. (Section 10.02)
The Trustee
The First National Bank of Chicago (the "Trustee") has lending and
other customary banking relationships with the Company. First Chicago
Capital Markets, Inc., an affiliate of the Trustee, has from time to time
acted as a selling agent in the distribution of the Company's debt
securities.
PLAN OF DISTRIBUTION
Whitman may sell Securities to underwriters, to or through dealers,
acting as principals or as agents, or directly to other purchasers.
Securities also may be sold by underwriters directly to other purchasers
or through other dealers, which may receive compensation from the
underwriters in the form of discounts, concessions or commissions. The
Prospectus Supplement with respect to Securities being offered sets forth
the terms of the offering, including the name or names of any
underwriters or agents, any discounts, commissions and other items
constituting compensation from the Company and any discounts, concessions
or commissions allowed or reallowed or paid by any underwriters to other
dealers. Underwriters, dealers and agents that participate in the
distribution of the Securities may be deemed to be underwriters and any
discounts, concessions or commissions received by them and any profit on
the resale of Securities by them may be deemed to be underwriting
discounts and commissions under the Securities Act.
The Securities may be sold from time to time in one or more
transactions at a fixed price or prices, which may be changed, at market
prices prevailing at the time of sale, at prices related to such market
prices or at negotiated prices. The place and time of delivery of
Securities in respect of which this Prospectus is delivered are set forth
in the Prospectus Supplement.
If so indicated in the Prospectus Supplement, the Company has
authorized underwriters or agents to solicit offers by certain specified
institutions to purchase Securities from the Company at the offering
price set forth in the Prospectus Supplement pursuant to delayed delivery
contracts providing for payment and delivery on a specified date in the
future. Such contracts will be subject only to those conditions set forth
in the Prospectus Supplement and to the condition that the purchase of
such Securities shall not at the time of delivery be prohibited under the
laws of the jurisdiction to which such purchaser is subject. Any
commission payable for solicitation of such contracts is set forth in the
Prospectus Supplement. The underwriters and such other agents will not
have any responsibility in respect of the validity or performance of such
contracts.
Each series of Securities to be offered will be a new issue of
securities with no established trading market. Certain underwriters to
whom Securities are sold by the Company for public offering and sale may
make a market in such Securities, but such underwriters will not be
obligated to do so and may discontinue any market making at any time
without notice. No assurance can be given as to the liquidity of the
trading market for any Securities.
Underwriters and agents may be entitled under agreements entered into
with the Company to indemnification by the Company against certain civil
liabilities, including liabilities under the Securities Act. Such
underwriters and agents may be customers of, engage in transactions with,
or perform services for the Company in the ordinary course of business.
LEGAL OPINIONS
Unless otherwise indicated in the Prospectus Supplement, certain
legal matters in connection with the Securities offered hereby will
be passed upon for the Company by William B. Moore, Vice President,
Secretary and General Counsel of the Company, and by Sidley &
Austin, Chicago, Illinois, and for any underwriters or agents by
Kirkland & Ellis, Chicago, Illinois. Mr. Moore is an officer and
full-time employee of the Company and owns, and holds options to
purchase, shares of its common stock.
EXPERTS
The consolidated financial statements incorporated herein by
reference to the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1995, have been so incorporated in reliance
on the report of KPMG Peat Marwick LLP, independent certified public
accountants, given upon the authority of said firm as experts in
accounting and auditing.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following are the estimated expenses of the issuance and distribution
of the securities (other than underwriting discounts and commissions)
being registered, all of which will be paid by the Company:
SEC Registration. . . . . . . . . . . . . . . .$ 60,606
Printing and engraving. . . . . . . . . . . . . 35,000
Trustee's fees and expenses . . . . . . . . . . 5,000
Legal fees and expenses . . . . . . . . . . . . 50,000
Accounting fees and expenses. . . . . . . . . . 25,000
Blue Sky fees and expenses. . . . . . . . . . . 25,000
Rating Agency fees. . . . . . . . . . . . . . . 125,000
Miscellaneous . . . . . . . . . . . . . . . . . 10,000
--------
Total $335,606
========
All of the above amounts, other than the SEC registration fee, are
estimated.
Item 15. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware
permits indemnification of directors, officers, employees and agents of
corporations under certain conditions and subject to certain limitations.
Article V of the Company's By-Laws provides for indemnification of any
director, officer, employee or agent of the Company, under certain
circumstances. Article NINTH of the Company's Certificate of
Incorporation eliminates the liability of directors of the Company under
certain circumstances for breaches of fiduciary duty to the Company and
its shareholders.
Directors and officers of the Company are insured, at the expense of
the Registrant, against certain liabilities which might arise out of
their employment and which might not be subject to indemnification under
the By-Laws.
Item 16. Exhibits.
The following documents are filed herewith or incorporated herein by
reference. Documents indicated by an asterisk (*) are incorporated
herein by reference to the file number indicated.
Exhibit
Number Description of Exhibits
-------- -------------------------
*1(a) Form of Underwriting Agreement (incorporated by
reference to the Registration Statement on Form S-3,
File No. 33-58209, Exhibit 1(a)).
*1(b) Form of Distribution Agreement (incorporated by
reference to the Registration Statement on Form S-3,
File No. 33-58209, Exhibit 1(b)).
*4 Indenture dated as of January 15, 1993 between Whitman
Corporation and the First National Bank of Chicago,
Trustee (incorporated by reference to File No. 1-4710,
Annual Report on Form 10-K for the year ended December
31, 1992, Exhibit (4)a).
5 Opinion of William B. Moore.
*12 Statement of Calculation of Ratio of Earnings to Fixed
Charges (incorporated by reference to File No. 1-4710,
Quarterly Report on Form 10-Q for the quarter ended
September 30, 1996, Exhibit 12).
23(a) Consent of KPMG Peat Marwick LLP.
23(b) Consent of William B. Moore (included in Exhibit 5).
24 Powers of Attorney.
25 Statement of Eligibility and Qualification on Form T-1
of The First National Bank of Chicago, as Trustee under
the Indenture pursuant to which the Debt Securities
registered hereunder are to be issued.
Item 17. Undertakings.
The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being
made of the securities registered hereby, a post-effective amendment
to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in this registration statement;
(iii) to include any material information with respect to
the plan of distribution not previously disclosed in this
registration statement;
provided, however, that the undertakings set forth in paragraphs (i)
and (ii) above 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 this 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 securitiesm
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) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a
form of prospectus 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.
In addition, the Company hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing
of the Company'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.
Insofar as indemnification of liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Company pursuant to the foregoing provisions,
or otherwise, the Company has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other
than the payment by the Company of expenses incurred or paid by a
director, officer or controlling person of the Company 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 Company will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it
is against public policy as expressed in the Act and will be governed by
the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
Whitman Corporation certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing this
registration statement 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 Rolling
Meadows, State of Illinois, on November 15, 1996.
WHITMAN CORPORATION
By: /s/ Frank T. Westover
-----------------------------
Frank T. Westover
Senior Vice President-Controller
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 November 15, 1996.
Signature Title
--------- -----
/s/ Bruce S. Chelberg*
- ------------------------- Chairman and Chief Executive
Bruce S. Chelberg Officer and Director
/s/ Thomas L. Bindley*
- ------------------------- Executive Vice President
Thomas L. Bindley (Principal Financial Officer)
/s/ Frank T. Westover
- ------------------------- Senior Vice President-Controller
Frank T. Westover (Principal Accounting Officer)
/s/ Herbert M. Baum*
- ------------------------- Director
Herbert M. Baum
/s/ Richard G. Cline*
- --------------------------- Director
Richard G. Cline
/s/ James W. Cozad*
- --------------------------- Director
James W. Cozad
/s/ Pierre S. du Pont*
- --------------------------- Director
Pierre S. du Pont
/a/ Archie R. Dykes*
- --------------------------- Director
Archie R. Dykes
/s/ Jarobin Gilbert, Jr.*
- --------------------------- Director
Jarobin Gilbert, Jr.
/s/ Victoria B. Jackson*
- --------------------------- Director
Victoria B. Jackson
/s/ Donald P. Jacobs*
- --------------------------- Director
Donald P. Jacobs
/s/ Charles S. Locke*
- --------------------------- Director
Charles S. Locke
*By: /s/ Frank T. Westover
----------------------
Frank T. Westover
Attorney-in-Fact
EXHIBIT INDEX
The following documents are filed herewith or incorporated herein by
reference. Documents indicated by an asterisk (*) are incorporated
herein by reference to the file number indicated.
Exhibit
Number Description of Exhibits
------- -----------------------
*1(a) Form of Underwriting Agreement (incorporated by
reference to the Registration Statement on Form S-3,
File No. 33- 58209, Exhibit 1(a)).
*1(b) Form of Distribution Agreement (incorporated by
reference to the Registration Statement on Form S-3,
File No. 33-58209, Exhibit 1(b)).
*4 Indenture dated as of January 15, 1993 between Whitman
Corporation and The First National Bank of Chicago,
Trustee (incorporated by reference to File No. 1-4710,
Annual Report on Form 10-K for the year ended December
31, 1992, Exhibit (4)a).
5 Opinion of William B. Moore
*12 Statement of Calculation of Ratio of Earnings to Fixed
Charges (incorporated by reference to File No. 1-4710,
Quarterly Report on Form 10-Q for the quarter ended
September 30, 1996, Exhibit 12).
23(a) Consent of KPMG Peat Marwick LLP.
23(b) Consent of William B. Moore (included in Exhibit 5).
24 Powers of Attorney.
25 Statement of Eligibility and Qualification on Form T-1
of The First National Bank of Chicago, as Trustee under
the Indenture pursuant to which the Debt Securities
registered hereunder are to be issued.
EXHIBIT 5
WHITMAN CORPORATION
3501 Algonquin Road
Rolling Meadows, Illinois 60008
November 15, 1996
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Whitman Corporation - Registration of
$200,000,000 Principal Amount of Debt Securities
------------------------------------------------
Gentlemen:
This refers to the Registration Statement on Form S-3 (the
"Registration Statement") covering $200,000,000 principal amount
of Debt Securities (the "Securities") of Whitman Corporation, a
Delaware corporation (the "Company"), which may be offered and
sold from time to time pursuant to Rule 415 under the Securities
Act of 1933. The Securities will be issued under an Indenture
dated as of January 15, 1993 (the "Indenture"), between the
Company and The First National Bank of Chicago, as trustee (the
"Trustee").
I have examined and am familiar with the Registration
Statement and the Prospectus therein contained, the Indenture, the
Company's Certificate of Incorporation and By-Laws, in each case
as amended to date, and resolutions adopted by the Board of
Directors of the Company relating to the Securities. I have also
examined such other documents, corporate records and instruments
as I have deemed necessary for the purposes of this opinion.
Based upon the foregoing, it is my opinion that, when duly
executed and authenticated as provided in the Indenture and duly
delivered for the consideration contemplated by the Prospectus or
any Prospectus Supplement thereto, the Securities will be legally
and validly issued and binding obligations of the Company,
enforceable in accordance with their terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity.
For the purposes of this opinion, I have assumed that at the
time the Securities or any series thereof is executed,
authenticated and delivered as aforesaid, there will have been no
changes in the laws currently applicable to the Company and that
such laws will be the only laws applicable to the Company.
I hereby consent to the filing of this opinion as an Exhibit
to the Registration Statement.
Very truly yours,
/s/ William B. Moore
Vice President, Secretary
and General Counsel
EXHIBIT 23(a)
KPMG Peat Marwick LLP
The Board of Directors of Whitman Corporation:
We consent to the incorporation by reference in this
Registration Statement on Form S-3 of Whitman Corporation of
our report dated January 15, 1996, relating to the
consolidated balance sheets of Whitman Corporation and
Subsidiaries as of December 31, 1995 and 1994 and the related
consolidated statements of income, shareholders' equity, and
cash flows for each of the years in the three-year period
ended December 31, 1995, which report appears
in the December 31, 1995 annual report on Form 10-K of Whitman
Corporation, and to the reference to our firm under the
heading "Experts" in the Prospectus.
KPMG Peat Marwick LLP
Chicago, Illinois
November 15, 1996
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director
and/or Officer of WHITMAN CORPORATION, a Delaware corporation (the
"Company"), which intends to file with the Securities and Exchange
Commission under the provisions of the Securities Act of 1933, as
amended, a Registration Statement on Form S-3 for the registration of up
to $200,000,000 of debt securities of the Company, hereby constitutes and
appoints THOMAS L. BINDLEY, WILLIAM B. MOORE and FRANK T. WESTOVER, and
each of them, his true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign such Registration Statement
and any and all amendments thereto (including post-effective amendments),
and to file such Registration Statement and amendments, with all exhibits
thereto and other documents in connection therewith, with the Securities
and Exchange Commission, 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 he might or could do if personally
present, hereby ratifying and confirming all that said attorneys-in-fact
and agents, or their substitute or substitutes, may lawfully do or cause
to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and seal on
the date indicated.
Date Date
/s/ Bruce S. Chelberg 11/15/96 /s/ Pierre S. du Pont 11/15/96
- -------------------- ------------------------
Bruce S. Chelberg Pierre S. du Pont
/s/ Thomas L. Bindley 11/15/96 /s/ Archie R. Dykes 11/15/96
- --------------------- ------------------------
Thomas L. Bindley Archie R. Dykes
/s/ Frank T. Westover 11/15/96 /s/ Jarobin Gilbert, Jr. 11/15/96
- --------------------- ------------------------
Frank T. Westover Jarobin Gilbert, Jr.
/s/ Herbert M. Baum 11/15/96 /s/ Victoria B. Jackson 11/15/96
- --------------------- ------------------------
Herbert M. Baum Victoria B. Jackson
/s/ Richard G. Cline 11/15/96 /s/ Donald P. Jacobs 11/15/96
- --------------------- ------------------------
Richard G. Cline Donald P. Jacobs
/s/ James W. Cozad 11/15/96 /s/ Charles S. Locke 11/15/96
- --------------------- ------------------------
James W. Cozad Charles S. Locke
EXHIBIT 25
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) ----
-----------
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
------------
WHITMAN CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 36-6076573
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
3501 Algonquin Road
Rolling Meadows, Illinois 60008
(Address of principal executive offices) (Zip Code)
Debt Securities
(Title of Indenture Securities)
Item 1. General Information. Furnish the following
information as to the trustee:
(a) Name and address of each examining or
supervising authority to which it is subject.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate
trust powers.
Item 2. Affiliations with the Obligor. If the obligor
is an affiliate of the trustee, describe each such
affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as
a part of this Statement of Eligibility.
1. A copy of the articles of association of
the trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
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.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act
of 1939, as amended, the trustee, The First National
Bank of Chicago, a national banking association
organized and existing under the laws of the United
States of America, has duly caused this Statement of
Eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City
of Chicago and State of Illinois, on the 1st day of
November, 1996.
The First National Bank of Chicago, Trustee
By /s/ R. D. Manella
Richard D. Manella
Vice President
* Exhibits 1, 2, 3 and 4 are herein incorporated by
reference to Exhibits bearing identical numbers in Item 16
of the Form T-1 of The First National Bank of Chicago, filed
as Exhibit 25.1 to the Registration Statement on Form S-3 of
SunAmerica Inc. filed with the Securities and Exchange
Commission on October 25, 1996 (Registration No. 333-14201).
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
November 1, 1996
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between
Whitman Corporation and The First National Bank of Chicago, the
undersigned, in accordance with Section 321(b) of the Trust
Indenture Act of 1939, as amended, hereby consents that the
reports of examinations of the undersigned, made by Federal or
State authorities authorized to make such examinations, may be
furnished by such authorities to the Securities and Exchange
Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
By: /s/ R. D. Manella
Richard D. Manella
Vice President
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago
Address: One First National Plaza, Ste 0460
City, State Zip: Chicago, IL 60670
FDCI Certificate No.: 0/3/6/1/8
Call Date: 06/30/96
ST-BK: 17-1630 FFIEC 031
Page RC-1
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for June 30, 1996
All schedules are to be reported in thousands of dollars.
Unless otherwise indicated, report the amount
outstanding of the last business day of the quarter.
Schedule RC--Balance Sheet
Dollar Amounts C400 <-
in Dollars RCFD BIL MIL THOU
--------------- ----- ------------ ---
ASSETS
1. Cash and balances
due from depository
institutions (from
Schedule RC-A):
a. Noninterest-bearing
balances and currency
and coin(1) 0081 3,572,641 1.a.
b. Interest-bearing
balances(2) 0071 6,958,367 1.b.
2. Securities
a. Held-to-maturity securities
(from Schedule RC-B, column A 1754 0 2.a.
b. Available-for-sale securities
(from Schedule RC-B, column D) 1773 1,448,974 2.b.
3. Federal funds sold and
securities purchased under
agreements to resell in
domestic offices of the bank
and its Edge and Agreement
subsidiaries,and in IBFs:
a. Federal Funds sold 0276 5,020,878 3.a.
b. Securities purchased under
agreements to resell 0277 918,688 3.b.
4. Loans and lease financing
receivables:
a. Loans and leases, net
of unearned income
(from Schedule
RC-C) RCFD 2122 19,125,160 4.a.
b. LESS: Allowance for
loan and lease losses
RCFD 3123 379,232 4.b.
c. LESS: Allocated
transfer risk reserve RCFD 3128 0 4.c.
d. Loans and leases, net
of unearned income,
allowance, and reserve
(item 4.a minus 4.b and 4.c) 2125 18,745,928 4.d.
5. Assets held in trading accounts 3545 9,599,172 5.
6. Premises and fixed assets
(including capitalized leases) 2145 623,289 6.
7. Other real estate owned
(from Schedule RC-M) 2150 8,927 7.
8. Investments in unconsolidated
subsidiaries and associated
companies (from Schedule RC-M) 2130 57,280 8.
9. Customers' liability to this
bank on acceptances outstanding 2155 632,259 9.
10. Intangible assets (from Schedule RC-M) 2143 156,715 10.
11. Other assets (from Schedule RC-F) 2160 1,592,088 11.
12. Total assets (sum of items 1
through 11) 2170 49,335,206 12.
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(1)Includes cash items in process of collection and unposted debits.
(2)Includes time certificates of deposit not held for trading.
Legal Title of Bank: The First National Bank of Chicago
Address: One First National Plaza, Ste 0460
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Call Date: 06/30/96
ST-BK: 17-1630 FFIEC 031
Page RC-2
Schedule RC-Continued
Dollar Amounts
in Thousands Bil Mil Thou
--------------- -------------
LIABILITIES
13. Deposits:
a. In domestic offices
(sum of totals of
columns A and C from
Schedule RC-E,
part 1) RCON 2200 16,878,870 13.a.
(1) Noninterest-bearing(1) RCON 6631 7,855,880 13.a.(1)
(2) Interest-bearing RCON 6636 9,022,990 13.a.(2)
b. In foreign offices,
Edge and Agreement
subsidiaries, and
IBFs (from Schedule
RC-E, part II) RCFN 2200 12,677,057 13.b.
(1) Noninterest bearing RCFN 6631 766,936 13.b.(1)
(2) Interest-bearing RCFN 6636 11,910,121 13.b.(2)
14. Federal funds purchased
and securities sold under
agreements to repurchase in
domestic offices of the bank
and of its Edge and Agreement
subsidiaries, and in IBFs:
a. Federal funds purchased RCFD 0278 1,318,968 14.a.
b. Securities sold under
agreements to repurchase RCFD 0279 1,197,589 14.b.
15. a. Demand notes issued
to the U.S. Treasury RCON 2840 104,546 15.a.
b. Trading Liabilities RCFD 3548 6,431,784 15.b.
16. Other borrowed money:
a. With original maturity
of one year or less RCFD 2332 4,437,636 16.a.
b. With original maturity
of more than one year RCFD 2333 75,308 16.b.
17. Mortgage indebtedness and
obligations under capitalized
leases RCFD 2910 283,041 17.
18. Bank's liability on
acceptance executed and
outstanding RCFD 2920 632,259 18.
19. Subordinated notes
and debentures RCFD 3200 1,275,000 19.
20. Other liabilities
(from Schedule RC-G) RCFD 2930 892,947 20.
21. Total liabilities
(sum of items 13 through 20) RCFD 2948 46,205,005 21.
22. Limited-Life preferred
stock and related surplus RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock
and related surplus RCFD 3838 0 23.
24. Common stock RCFD 3230 200,858 24.
25. Surplus (exclude all
surplus related to
preferred stock) RCFD 3839 2,349,164 25.
26. a. Undivided profits
and capital reserves RCFD 3632 584,878 26.a.
b. Net unrealized holding
gains (losses) on
available-for-sale
securities RCFD 8434 (3,951) 26.b.
27. Cumulative foreign currency
translation adjustments RCFD 3284 (748) 27.
28. Total equity capital
(sum of items 23 through 27) RCFD 3210 3,130,201 28.
29. Total liabilities, limited-life
preferred stock, and equity
capital (sum of items 21, 22,
and 28) RCFD 3300 49,335,206 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number
of the statement below that best describes
the most comprehensive level of auditing
work performed for the bank by independent
external auditors as of any date during Number
1995 RCFD 6724 N/A M.1.
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with
generally accepted auditing standards by a certified public accounting firm
(may be required by state chartering authority)
4 = Directors' examination of the bank performed by other external
auditors (may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
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(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
