<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 26, 1997
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------------
KELLWOOD COMPANY
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 36-2472410
(State or other jurisdiction (I.R.S Employer
of incorporation or Identification
organization) No.)
</TABLE>
P.O. BOX 14374
ST. LOUIS, MISSOURI 63178
(314) 576-3100
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
THOMAS H. POLLIHAN, GENERAL COUNSEL
KELLWOOD COMPANY
P.O. BOX 14374
ST. LOUIS, MISSOURI 63178
(314) 576-3312
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
------------------------------
COPIES TO:
FREDERICK W. AXLEY, P.C. MICHAEL A. CAMPBELL
MCDERMOTT, WILL & EMERY MAYER, BROWN & PLATT
227 WEST MONROE STREET 190 SOUTH LASALLE STREET
CHICAGO, ILLINOIS 60606-5096 CHICAGO, ILLINOIS 60603
------------------------------
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
<TABLE>
<CAPTION>
PROPOSED
PROPOSED MAXIMUM MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED BE REGISTERED (1) PER UNIT(1) OFFERING PRICE (1) REGISTRATION FEE
<S> <C> <C> <C> <C>
Debt Securities
Preferred Stock (no par value)
Depositary Shares
Common Stock ($.01 par value)(2) (3) (3) $300,000,000 $90,910
</TABLE>
(1) The maximum aggregate offering price of the securities registered hereby
will not exceed $300,000,000.
(2) Including Preferred Stock Purchase Rights.
(3) Not applicable pursuant to General Instruction II.D. of Form S-3 and Rule
457(o) under the Securities Act of 1933.
(4) There are also being registered hereunder an indeterminate number of
Depositary Shares to be evidenced by Depositary Receipts issued pursuant to
a Deposit Agreement. In the event that fractional interests in shares of the
Preferred Stock registered hereunder are offered, Depositary Receipts may be
distributed to those persons purchasing such fractional interests and the
shares of Preferred Stock will be deposited with the Depositary under the
Deposit Agreement.
------------------------------
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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<PAGE>
SUBJECT TO COMPLETION, DATED SEPTEMBER 26, 1997
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.
<PAGE>
PROSPECTUS
KELLWOOD COMPANY
$300,000,000
DEBT SECURITIES, PREFERRED STOCK AND COMMON STOCK
------------------
Kellwood Company ("Kellwood" or the "Company") from time to time may offer
(i) unsecured debt securities, which may be either senior (the "Senior Debt
Securities") or subordinated (the "Subordinated Debt Securities"), and which may
be convertible into shares of common stock, par value $.01 per share ("Common
Stock") of the Company (the "Convertible Debt Securities" and, together with the
Senior Debt Securities and the Subordinated Debt Securities, the "Debt
Securities"), (ii) shares of its preferred stock (the "Preferred Stock"), which
may be convertible into shares of Common Stock and (iii) shares of Common Stock.
The Debt Securities, Preferred Stock and Common Stock (collectively, the
"Securities") may be offered either together or separately, and will be offered
in amounts, at prices and on terms to be determined at the time of offering. The
Securities offered pursuant to this Prospectus may be issued in one or more
series or issuances and will be limited to $300,000,000 aggregate public
offering price (or the equivalent in foreign currency or currency units).
The Senior Debt Securities will rank equally in right of payment with all
other Senior Indebtedness (as defined) of the Company. The Subordinated Debt
Securities will be subordinated in right of payment to all Senior Indebtedness
of the Company.
Certain specific terms of the particular Securities in respect of which this
Prospectus is being delivered (the "Offered Securities") are set forth in the
accompanying Prospectus Supplement (the "Prospectus Supplement"), including,
where applicable, the initial public offering price of the Securities, the
listing on any securities exchange, other special terms, and (i) in the case of
Debt Securities, the specific designation, aggregate principal amount, original
issue discount, if any, authorized denominations, maturity, premium, if any,
rate (which may be fixed or variable), time and method of calculating payment of
interest, if any, the place or places where principal of, premium, if any, and
interest, if any, on the Debt Securities will be payable, the currency in which
principal of, premium, if any, and interest, if any, on the Debt Securities will
be payable, whether the Debt Securities will be Senior Debt Securities or
Subordinated Debt Securities, any terms of redemption at the option of the
Company or the holder, any sinking fund provisions and any terms for conversion
or exchange into Common Stock, (ii) in the case of any series of Preferred
Stock, the specific title and stated value, any dividend, liquidation,
redemption, voting and other rights and any terms for exchange for Debt
Securities or conversion into Debt Securities or Common Stock and (iii) in the
case of Common Stock, the number of shares of Common Stock and the terms of the
offering and sale thereof. If so specified in the applicable Prospectus
Supplement, Offered Securities may be issued in whole or in part in the form of
one or more temporary or permanent global securities. The shares of any series
of Preferred Stock may be represented by Depositary Shares as described herein.
------------------------
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.
------------------------
The Company may sell the Securities to or through underwriters or dealers,
and may also sell Securities directly to other purchasers or through agents. See
"Plan of Distribution." The Prospectus Supplement sets forth the names of any
underwriters, dealers or agents involved in the sale of the Offered Securities
in respect of which this Prospectus is being delivered and any applicable fee,
commission or discount arrangements with them.
This Prospectus may not be used to consummate sales of Securities unless
accompanied by a Prospectus Supplement.
------------------------
THE DATE OF THIS PROSPECTUS IS , 1997
<PAGE>
NO PERSON HAS BEEN 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 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
THE SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN THE REGISTERED
SECURITIES TO WHICH IT RELATES OR AN OFFER TO SELL OR THE SOLICITATION OF AN
OFFER TO BUY SUCH SECURITIES TO ANY PERSON IN ANY JURISDICTION 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 SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS
BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THAT THE
INFORMATION CONTAINED HEREIN 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 "Exchange Act"), and in accordance
therewith files reports, proxy and other information with the Securities and
Exchange Commission (the "Commission"). Reports and proxy and other information
statements filed by the Company and the Registration Statement and the exhibits
thereto may be inspected, without charge, at the public reference facilities
maintained by the Commission at Room 1024, 450 Fifth Street, N.W., Washington,
D.C. 20549, and at the following Regional Offices of the Commission: Midwest
Regional Office, 500 West Madison Street, Suite 1400, Chicago, IL 60661-2511 and
Northeast Regional Office, Seven World Trade Center, Room 1028, New York, New
York 10048. 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. Reports, proxy and information statements and other
information concerning the Company may also be inspected at the office of the
New York Stock Exchange (the "NYSE") on which the Company's Common Stock is
listed: The New York Stock Exchange, Inc., 20 Broad Street, New York, New York
10005. 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 and will be filed
electronically. The Commission maintains a Web site at http:\\www.sec.gov
containing reports, proxy and information statements and other information
regarding registrants, including the Company.
This Prospectus constitutes a part of a Registration Statement filed by the
Company with the Commission under the Securities Act of 1933, as amended (the
"Securities Act"). This Prospectus omits certain of the information contained in
the Registration Statement in accordance with the rules and regulations of the
Commission. Reference is hereby made to the Registration Statement and related
exhibits for further information with respect to the Company and the Securities.
Statements contained herein concerning the provisions of any document are not
necessarily complete and, in each instance, reference is made to the copy of the
document filed as an exhibit to the Registration Statement or otherwise filed
with the Commission. Each statement is qualified in its entirety by such
reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents of the Company heretofore filed with the Commission
pursuant to the Exchange Act are incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year ended April 30,
1997; and
2. The Company's Quarterly Report on Form 10-Q for the fiscal quarter ended
July 31, 1997.
All reports and other documents filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the termination of the offering of the Securities
offered hereby shall be deemed to be incorporated by reference into this
Prospectus and to be a part hereof from the date of filing of the reports and
documents. Any statement contained in a
2
<PAGE>
document incorporated or deemed to be incorporated by reference in this
Prospectus or any Prospectus Supplement shall be deemed to be modified or
superseded for purposes of this Prospectus or any Prospectus Supplement to the
extent that a statement contained herein, therein or in any other subsequently
filed documents which also is or is deemed to be incorporated by reference in
this Prospectus or in any Prospectus Supplement modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Prospectus or any
Prospectus Supplement.
The Company will provide without charge to each person to whom this
Prospectus is delivered, on the written or oral request of such person, a copy
(without exhibits other than exhibits specifically incorporated by reference) of
any or all documents incorporated by reference into this Prospectus. Requests
for such copies should be directed to Corporate Secretary, Thomas H. Pollihan,
Kellwood Company, P.O. Box 14374, St. Louis, Missouri 63178, telephone number
(314) 576-3100.
This Prospectus and the accompanying Prospectus Supplement contain
"forward-looking" statements as defined in the Private Securities Litigation
Reform Act of 1995, that are based on current expectations, estimates and
projections. Statements that are not historical facts, including statements
about the Company's beliefs and expectations, are forward-looking statements.
These statements contain potential risks and uncertainties; therefore, actual
results may differ materially. The Company undertakes no obligation to update
publicly any forward-looking statements whether as a result of new information,
future events or otherwise. Important factors that may affect these projections
or expectations include, but are not limited to: changes in competition in the
wholesale and retail markets in which the Company operates; the effect of
national and regional economic conditions; the overall level of consumer
spending; the performance of the Company's products within the prevailing retail
environment; customer acceptance of both new designs and newly-introduced
product lines; financial difficulties encountered by customers; and the
Company's ability to successfully implement its business and operational
strategies.
THE COMPANY
Kellwood is a leading designer, manufacturer and marketer of apparel and
camping soft goods with sales of over $1.5 billion in fiscal year 1997. The
Company is one of the largest providers of popular-to-moderate women's
sportswear in the United States, servicing all channels of distribution.
Additionally, Kellwood is a major manufacturer of men's woven shirts and a
supplier of outerwear and lingerie. The Company also participates in the
better-to-bridge women's sportswear market.
The Company operates three strategic business portfolios: (i) Domestic
Branded, which designs, contracts for the manufacture of, and markets a broad
range of apparel under recognized brands such as Sag Harbor-Registered
Trademark-, Kathie Lee-Registered Trademark- and Plaza South-TM-; this portfolio
also includes American Recreation Products, a supplier of branded camping soft
goods; (ii) Domestic Private Label, which manufactures and markets a broad range
of sportswear and intimate apparel principally produced in plants operated by
the Company in the United States; and (iii) Far East Private Label, which
principally manufactures woven shirts in plants operated by the Company in the
Far East for sale primarily in the United States. The Company sells its products
through multiple channels of distribution, including national retail chains,
department stores, specialty stores, mass merchants, mail order houses, sporting
goods stores, discounters and other retailers. The Company's global sourcing
capability is diverse in terms of the range of products produced and sourced. In
order to enhance responsiveness to the changing needs of the customer, to
achieve flexibility and to reduce costs, the Company maintains sourcing
relationships with contract manufacturers around the world. This network is
supplemented by 31 Company-operated plants located in the United States, Canada,
the Caribbean Basin, Hong Kong, the People's Republic of China and Sri Lanka.
Kellwood is headquartered in St. Louis, Missouri and employs approximately
17,500 persons in fourteen states and seven foreign countries. Kellwood has been
publicly owned since 1961 and its Common Stock trades on the NYSE under the
symbol "KWD."
3
<PAGE>
USE OF PROCEEDS
Unless otherwise specified in the applicable Prospectus Supplement, the
Company intends to use the net proceeds from the sale of the Securities for
general corporate purposes, including working capital, the repayment or
refinancing of indebtedness, future acquisitions and/or capital expenditures.
Pending application of the net proceeds for specific purposes, proceeds may be
invested in short-term or marketable securities.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the historical consolidated ratios of
earnings to fixed charges for the Company for the three months ended each of
July 31, 1997 and July 31, 1996 and for each of the fiscal years ended April 30,
1993 through April 30, 1997:
<TABLE>
<CAPTION>
THREE MONTHS ENDED
JULY 31, FISCAL YEAR ENDED APRIL 30,
- -------------------- -----------------------------------------------------
1997 1996 1997 1996 1995 1994 1993
- --------- --------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
2.56 2.61 3.52 2.79 2.25 4.23 4.04
</TABLE>
The ratio of earnings to fixed charges is determined by dividing the sum of
net earnings before interest expense, taxes on income, amortization of debt
expense, and a portion of rent expense representative of the interest component
by the sum of interest expense, amortization of debt expense and the portion of
rent expense representative of the interest component. Included in net earnings
for fiscal 1995 is a restructuring charge of $14 million related to the shutdown
of the Company's Saipan facility as discussed in the Notes to the Company's
Consolidated Financial Statements. If such restructuring charge had not
occurred, the ratio of earnings to fixed charges would have been 2.86 for fiscal
1995.
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt Securities sets forth
certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of the Debt Securities
offered by any Prospectus Supplement (the "Offered Debt Securities") and the
extent, if any, to which such general provisions may not apply thereto will be
described in the Prospectus Supplement relating to such Offered Debt Securities.
The Debt Securities may be issued from time to time in one or more series
and will constitute either Senior Debt Securities or Subordinated Debt
Securities. Senior Debt Securities will be issued under an Indenture (the
"Senior Indenture"), between the Company and The Chase Manhattan Bank, as
Trustee (the "Senior Trustee"). The Subordinated Debt Securities will be issued
under an Indenture (the "Subordinated Indenture"), between the Company and a
trustee to be named prior to the offering of any Subordinated Debt Securities,
as Trustee (the "Subordinated Trustee"). The Senior Indenture and the
Subordinated Indenture are referred to herein individually as an "Indenture"
and, collectively, as the "Indentures," and the Senior Trustee and the
Subordinated Trustee are referred to herein individually as the "Trustee" and
collectively as the "Trustees."
The following summaries of certain provisions of the Debt Securities and the
Indentures do not purport to be complete and are subject to, and are qualified
in their entirety by reference to, all of the provisions of the Indentures,
including the definitions therein of certain terms. Certain capitalized terms
used herein are defined in the Indentures. The Indentures are substantially
identical, except for certain covenants of the Company and provisions relating
to subordination.
4
<PAGE>
GENERAL
The Indentures do not limit the amount of debt securities which can be
issued thereunder and provide that debt securities of any series may be issued
thereunder up to the aggregate principal amount which may be authorized from
time to time by the Company. The Indentures do not limit the amount of other
Indebtedness or securities, other than certain secured Indebtedness as described
below, which may be issued by the Company or its Subsidiaries. All Senior Debt
Securities will be unsecured and will rank on a parity with all other unsecured
and unsubordinated Indebtedness of the Company. All Subordinated Debt Securities
will be unsecured and will be subordinated in right of payment to the prior
payment in full of Senior Indebtedness (which term includes the Senior Debt
Securities) of the Company as described below under "Provisions Applicable
Solely to Subordinated Debt Securities--Subordination." In addition, creditors
of Subsidiaries of the Company are entitled to a claim on the assets of such
Subsidiaries. Consequently, in the event of a liquidation or reorganization of
any Subsidiary, creditors of the Subsidiary are likely to be paid in full before
any distribution is made to the Company and holders of Senior Debt Securities or
Subordinated Debt Securities, except to the extent that the Company is itself
recognized as a creditor of such Subsidiary, in which case the claims of the
Company would still be subordinate to any security interests in the assets of
such Subsidiary and any Indebtedness of such Subsidiary senior to that held by
the Company.
Reference is made to the Prospectus Supplement for the following terms
thereof: (i) the title of the Offered Debt Securities and classification as
Senior Debt Securities or Subordinated Debt Securities; (ii) any limit upon the
aggregate principal amount of the Offered Debt Securities; (iii) if other than
100% of the principal amount, the percentage of the principal amount at which
the Offered Debt Securities will be offered; (iv) the date or dates on which the
principal of the Offered Debt Securities will be payable (or method of
determination thereof); (v) the rate or rates (which may be fixed or variable)
at which the Offered Debt Securities will bear interest (or method of
determination thereof), if any, the date or dates from which any such interest
will accrue and on which such interest will be payable, and the record dates for
the determination of the holders to whom interest is payable; (vi) if other than
U.S. dollars, the currency or units based on or relating to currencies in which
the Offered Debt Securities are denominated and which the principal of, interest
on and any Additional Amounts (as defined below) will or may be payable; (vii)
if other than as set forth herein, the place or places where the principal of,
interest on and any Additional Amounts payable in respect of the Offered Debt
Securities will be payable; (viii) the price or prices at which, the period or
periods within which, and the terms and conditions upon which Offered Debt
Securities may be redeemed, in whole or in part, at the option of the Company;
(ix) whether the Offered Debt Securities are convertible into Common Stock and,
if so, the terms and conditions upon which such conversion will be effected,
including the initial conversion price or conversion rate, the conversion period
and other conversion provisions in addition to or in lieu of those described in
the applicable Indenture; (x) the obligation, if any, of the Company to redeem,
repurchase or repay Offered Debt Securities, whether pursuant to any sinking
fund or analogous provisions or pursuant to other provisions set forth therein
or at the option of a holder thereof; (xi) whether the Offered Debt Securities
will be represented in whole or in part by one or more global notes registered
in the name of a depository or its nominee; (xii) whether and under what
circumstances the Company will pay additional amounts ("Additional Amounts") in
respect of certain taxes imposed on certain holders of Offered Debt Securities
or as otherwise provided; and (xiii) any other terms or conditions not
inconsistent with the provisions of the Indenture upon which the Offered Debt
Securities will be offered. "Principal" when used herein includes, when
appropriate, the premium, if any, on the Debt Securities. For a description of
the terms of the Offered Debt Securities, reference must be made to both the
Prospectus Supplement relating thereto and to the description of Debt Securities
set forth herein.
Unless otherwise provided in the Prospectus Supplement, principal, interest
and Additional Amounts, if any, will be payable, and the Debt Securities will be
transferable or, if applicable, convertible at the office or offices or agency
maintained by the Company for such purposes; provided that payment of interest
on
5
<PAGE>
registered Debt Securities may be made by check mailed to the persons entitled
thereto at the addresses of such persons appearing on the Security register. In
the case of registered Debt Securities, interest on the Debt Securities will be
payable on any interest payment date to the persons in whose name the Debt
Securities are registered at the close of business on the record date with
respect to such interest payment date.
Unless otherwise specified in the applicable Prospectus Supplement, Debt
Securities will be issued only in fully registered form without coupons in
minimum denominations of $1,000 and any integral multiple thereof. The Debt
Securities may be represented in whole or in part by one or more global notes
registered in the name of a depository or its nominee and, if so represented,
interests in such global note will be shown on, and transfers thereof will be
effected only through, records maintained by the designated depository and its
participants as described below. Where Debt Securities of any series are issued
in bearer form, the special restrictions and considerations, including special
offering restrictions and special Federal income tax considerations, applicable
to any such Debt Securities and to payment on and transfer and exchange of such
Debt Securities will be described in the applicable Prospectus Supplement.
Some of the Debt Securities may be issued as discounted Debt Securities
(bearing no interest or bearing interest at a rate which at the time of issuance
is below market rates) to be sold at a substantial discount below their stated
principal amount ("Original Issue Discount Securities"). Federal income tax
consequences and other special considerations applicable to any such Original
Issue Discount Securities will be described in the Prospectus Supplement
relating thereto.
If the purchase price of any Debt Securities is payable in one or more
foreign currencies or currency units or if any Debt Securities are denominated
in one or more foreign currencies or currency units or if the principal of or
interest, if any, on any Debt Securities is payable in one or more foreign
currencies or currency units, the restrictions, elections, certain Federal
income tax considerations, specific terms and other information with respect to
such issue of Debt Securities and such foreign currency or currency units will
be set forth in the applicable Prospectus Supplement.
Debt Securities may be presented for exchange, and registered Debt
Securities may be presented for transfer, in the manner, at the places or
subject to the restrictions set forth in the applicable Indenture, the Debt
Securities and the Prospectus Supplement relating thereto. Debt Securities in
bearer form and the coupons, if any, appertaining thereto will be transferable
by delivery. No service charge will be made for any transfer or exchange of Debt
Securities, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Indentures require the annual filing by the Company with the Trustee of
a certificate as to compliance with certain covenants contained in the
Indentures.
The Company will comply with Section 14(e) under the Exchange Act, and any
other tender offer rules under the Exchange Act which may then be applicable, in
connection with any obligation of the Company to purchase Debt Securities at the
option of the holders thereof. Any such obligation applicable to a series of
Debt Securities will be described in the Prospectus Supplement relating thereto.
Unless otherwise described in a Prospectus Supplement relating to any
Offered Debt Securities, other than as described below under "Certain
Covenants--Limitation on Liens", the Indentures do not contain any provisions
that would limit the ability of the Company to incur indebtedness or that would
afford holders of Debt Securities protection in the event of a sudden and
significant decline in the credit quality of the Company or a takeover,
recapitalization or highly leveraged or similar transaction involving the
Company. Accordingly, the Company could in the future enter into transactions
that could increase the amount of Indebtedness outstanding at that time or
otherwise affect the Company's capital structure or credit rating. Reference is
made to the Prospectus Supplement relating to the particular series of Debt
Securities offered thereby for information with respect to any deletions from,
modifications of or additions
6
<PAGE>
to the Events of Default described below or covenants of the Company contained
in the Indentures, including any addition of a covenant or other provision
providing event risk or similar protection.
BOOK-ENTRY DEBT SECURITIES
The Debt Securities may be issued in whole or in part in the form of one or
more temporary or permanent global securities (the "Global Securities") that
will be deposited with, or on behalf of, a depositary ("Depositary") or its
nominee identified in the applicable Prospectus Supplement. In such a case, one
or more Global Securities will be issued in a denomination or aggregate
denomination equal to the portion of the aggregate principal amount of
outstanding Debt Securities of the series to be represented by such Global
Security or Global Securities. Unless and until it is exchanged in whole or in
part for Debt Securities in registered form, a Global Security may not be
registered for transfer or exchange except as a whole by the Depositary for such
Global Security to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary or by such
Depositary or any nominee to a successor Depositary or a nominee of such
successor Depositary and except in the circumstances described in the applicable
Prospectus Supplement.
The specific terms of the depositary arrangement with respect to any portion
of a series of Debt Securities to be represented by a Global Security will be
described in the applicable Prospectus Supplement. The Company expects that the
following provisions will apply to depositary arrangements.
Unless otherwise specified in the applicable Prospectus Supplement, Debt
Securities which are to be represented by a Global Security to be deposited with
or on behalf of a Depositary will be represented by a Global Security registered
in the name of such Depositary or its nominee. Upon the issuance of such Global
Security, and the deposit of such Global Security with or on behalf of the
Depositary of such Global Security, the Depositary will credit, on its
book-entry registration and transfer system, the respective principal amounts of
the Debt Securities represented by such Global Security to the accounts of
institutions that have accounts with such Depositary or its nominee
("participants"). The accounts to be credited will be designated by the
underwriters or agents of such Debt Securities or, if such Debt Securities are
offered and sold directly by the Company, by the Company. Ownership of
beneficial interests in such Global Security will be limited to participants or
Persons that may hold interests through participants. Ownership of beneficial
interests by participants in such Global Security will be shown on, and the
transfer of that ownership interest will be effected only through, records
maintained by the Depositary or its nominee for such Global Security. Ownership
of beneficial interests in such Global Security by Persons that hold through
participants will be shown on, and the transfer of that ownership interest
within such participant will be effected only through, records maintained by
such participant. The laws of some jurisdictions require that certain purchasers
of securities take physical delivery of such securities in certificated form.
The foregoing limitations and such laws may impair the ability to transfer
beneficial interests in such Global Securities.
So long as the Depositary for a Global Security, or its nominee, is the
registered owner of such Global Security, such Depositary or such nominee, as
the case may be, will be considered the sole owner or holder of the Debt
Securities represented by such Global Security for all purposes under the
applicable Indenture. Unless otherwise specified in the applicable Prospectus
Supplement, owners of beneficial interests in such Global Security will not be
entitled to have Debt Securities of the series represented by such Global
Security registered in their names, will not receive or be entitled to receive
physical delivery of Debt Securities of such series in certificated form and
will not be considered the holders thereof for any purposes under the applicable
Indenture. Accordingly, each Person owning a beneficial interest in such Global
Security must rely on the procedures of the Depositary and, if such Person is
not a participant, on the procedures of the participant through which such
Person owns its interest, to exercise any rights of a holder under the
applicable Indenture. The Company understands that under existing industry
practices, if the Company requests any action of holders or an owner of a
beneficial interest in such Global Security desires to give any notice to take
any action a holder is entitled to give or take under the applicable
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Indenture, the Depositary would authorize the participants to give such notice
or take such action, and participants would authorize beneficial owners owning
through such participants to give such notice or take such action or would
otherwise act upon the instructions of beneficial owners owning through them.
Principal of and any premium and interest on a Global Security will be
payable in the manner described in the applicable Prospectus Supplement.
CERTAIN COVENANTS
LIMITATION ON LIENS. The Senior Indenture provides that the Company will
not, and will not permit any of its Restricted Subsidiaries to, create, incur or
otherwise cause or suffer to exist or become effective any Liens of any kind
upon any Principal Property or 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) unless all payments due under
the Senior Indenture and the Senior Debt Securities are secured on an equal and
ratable basis with the obligations so secured until such time as such obligation
is no longer secured by a Lien, except for Permitted Liens. See also "Exempted
Indebtedness" below.
The Subordinated Indenture provides that the Company will not, and will not
permit any of its Restricted Subsidiaries to, create, incur, or otherwise cause
or suffer to exist or become effective any Liens of any kind upon any Principal
Property or 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) that secures any Indebtedness that is on a parity in
right of payment with the Subordinated Debt Securities unless all payments due
under the Subordinated Indenture and the Subordinated Debt Securities are
secured on an equal and ratable basis with the obligation so secured until such
time as such obligation is no longer secured by a Lien, except for Permitted
Liens. See also "Exempted Indebtedness" below.
LIMITATIONS ON SALE AND LEASEBACK TRANSACTIONS. The Indentures provide that
neither the Company nor any Restricted Subsidiary will enter into any sale and
leaseback 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 the Indentures, to incur Indebtedness secured by a lien on
the property to be leased without equally and ratably securing the Debt
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. See also "Exempted Indebtedness" below.
EXEMPTED INDEBTEDNESS. Notwithstanding the foregoing limitations on Liens
and sale and leaseback transactions, the Company and its Restricted Subsidiaries
may issue, assume, or guarantee Indebtedness secured by a Lien without securing
the Debt Securities, or may enter into sale and leaseback transactions without
retiring funded debt, or enter into a combination of such transactions, if the
sum of the principal amount of all such Indebtedness and the aggregate value of
all such sale and leaseback transactions does not at any such time exceed 12.5%
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.
CONVERSION
The Indentures contain certain provisions regarding the conversion of Debt
Securities into Common Stock (or cash in lieu thereof). The specific terms
applicable to a series of Convertible Debt Securities, including the initial
conversion price or conversion rate, any adjustments to such conversion price or
conversion rate and the conversion period, and the conditions upon which such
conversion will be effected will be set forth in the Prospectus Supplement
relating thereto.
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EVENTS OF DEFAULT AND REMEDIES
An Event of Default with respect to the Debt Securities of any series is
defined in each Indenture as: (i) default in the payment of any installment of
interest on or any Additional Amounts payable in respect of any of the Debt
Securities of such series as and when the same shall become due and payable, and
continuance of such default for a period of 30 days; (ii) default in the payment
of all or any part of the principal of any of the Debt Securities of such series
as and when the same shall become due and payable either at maturity, upon any
redemption, or otherwise; (iii) the failure by the Company to perform or observe
any of its other covenants, conditions or agreements contained in the Debt
Securities of such series or set forth in the applicable Indenture and
continuance of such failure for a period of 90 days after due notice by the
applicable Trustee or by the holders of at least 25% in principal amount of the
Debt Securities of that series then outstanding; (iv) default in the payment of
any scheduled payment of principal of or interest on any Indebtedness of the
Company or any Subsidiary of the Company (other than the Debt Securities of such
series) aggregating more than $25 million in principal amount, when due after
giving effect to any applicable grace period, that results in such Indebtedness
becoming due and payable prior to the date on which it would otherwise become
due and payable, and such acceleration shall not have been rescinded or
annulled, or such Indebtedness shall not have been discharged; or (v) certain
events of bankruptcy, insolvency or reorganization involving the Company or its
Subsidiaries as more fully described in the Indentures. Additional Events of
Default may be added for the benefit of holders of certain series of Debt
Securities which, if added, will be described in the Prospectus Supplement
relating to such Debt Securities. The Indentures provide that the Trustee shall
notify the holders of Debt Securities of each series of any continuing default
known to the Trustee which has occurred with respect to that series within 90
days after the occurrence thereof. The Indentures provide that notwithstanding
the foregoing, except in the case of default in the payment of the principal of,
interest on or any Additional Amounts payable in respect of any of the Debt
Securities of such series the Trustee may withhold such notice if the Trustee in
good faith determines that the withholding of such notice is in the interests of
the holders of Debt Securities of such series.
If an Event of Default of the type described in clause (v) above shall
happen and be continuing, then the principal of (or, with respect to a series of
Original Issue Discount Securities, such portion of the principal amount as may
be specified in the terms of such series), accrued and unpaid interest on, and
any Additional Amounts payable in respect of the Debt Securities will become
immediately due and payable. If one or more Events of Default of the type
described in clauses (i) through (iv) with respect to any series of Debt
Securities at the time outstanding shall happen and be continuing, then either
the Trustee or the holders of not less than 25% of the principal amount of that
series of the Debt Securities then outstanding may declare the principal (or,
with respect to a series of Original Issue Discount Securities, such portion of
the principal amount as may be specified in the terms of such series), accrued
and unpaid interest on and any Additional Amounts payable in respect of the Debt
Securities of that series due and payable immediately. This provision is subject
to the condition that if, after any declaration of acceleration and before
Stated Maturity of the principal with respect to the Debt Securities of any
series, all arrears of interest and any Additional Amounts and the expenses of
the Trustee, its agents or attorneys shall be paid by or for the account of the
Company, and all Defaults (other than the payment of principal that has been
declared due and payable) have been cured to the satisfaction of the Trustee,
then the Trustee shall, upon the written request of the holders of a majority in
principal amount of the Debt Securities of the applicable series, waive such
Default and rescind or annul the declaration of acceleration; but no such
waiver, rescission or annulment shall extend to or affect any subsequent Default
or impair any right consequent thereon.
No holder of any Debt Security of any series will have the right to pursue a
remedy under the applicable Indenture or the Debt Securities, unless (1) such
holder gives the Trustee notice of a continuing Default with respect to the Debt
Securities of that series, (2) the holders of at least a majority of the Debt
Securities of the applicable series make a request to the Trustee to pursue the
remedy, (3) such holder or
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holders offered the Trustee security or indemnity satisfactory to the Trustee
against any loss, liability or expense and (4) the Trustee does not comply with
the request within 30 days after the receipt of the request and the offer of
security or indemnity. However, nothing contained in the Indentures shall affect
or impair the right of any holder of Debt Securities to institute suit to
enforce payment of the principal of, interest on and any Additional Amounts
payable in respect of such holder's Debt Securities on or after the due dates
expressed in such Debt Securities.
The Company must furnish to the Trustee a statement, detailing any Defaults
of which it is aware, within 5 days of becoming aware of the occurrence of any
Default.
REPORTS
The Indentures provide that the Company will file with the Trustee copies of
the annual reports and other information, documents and reports which the
Company is required to file with the Commission pursuant to the Exchange Act. If
the Company is not required to file such reports and other information, the
Indentures provide that the Company shall file with the Trustee and cause to be
mailed to the holders of Debt Securities (i) annual reports containing the
information required to be contained in an Annual Report on Form 10-K, (ii)
quarterly reports containing the information required to be contained in a
Quarterly Report on Form 10-Q and (iii) promptly after the occurrence of an
event required to be therein reported, such other reports containing information
required to be contained in a Current Report on Form 8-K. The Company shall also
comply with the requirements of Trust Indenture Act 314(a).
SUCCESSOR COMPANY
The Indentures provide that the Company will not consolidate or merge with
or into, or sell, lease, convey or otherwise dispose of all or substantially all
of its assets or assign any of its obligations under the Debt Securities or
applicable Indenture unless (i) the entity formed by or surviving any such
consolidation or merger (if other than the Company), or to which such sale,
lease, conveyance or other disposition shall have been made (the "Surviving
Entity"), is a corporation organized and existing under the laws of the United
States, any state thereof, or the District of Columbia; (ii) the Surviving
Entity assumes by supplemental indenture all of the obligations of the Company
under the Debt Securities and the applicable Indenture; and (iii) immediately
after giving effect to such transaction, no Default or Event of Default shall
have occurred and be continuing. With respect to the sale of assets, the phrase
"all or substantially all" as used in the Indentures varies according to the
facts and circumstances of the subject transaction, has no clearly established
meaning under New York law (which governs the Indentures) 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 assets of a person,
and therefore it may be unclear as to whether a disposition of assets comes
within the terms of this provision.
DISCHARGE
Each Indenture provides that it will cease to be of further effect (except
that certain obligations will survive) with respect to a series of Debt
Securities when all outstanding Debt Securities of such series authenticated and
issued have been delivered (other than destroyed, lost or stolen Debt Securities
that have been replaced or paid) to the Trustee for cancellation and the Company
has paid all sums payable under such Indenture with respect to such series of
Debt Securities.
MODIFICATION OF THE INDENTURES
Each Indenture contains provisions permitting the Company and the applicable
Trustee, with the consent of the holders of not less than a majority in
principal amount of the Debt Securities of each series at the time outstanding
under such Indenture, to enter into supplemental indentures to amend any of the
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provisions of each Indenture or any supplemental indenture with respect to the
Debt Securities of such series; provided that, unless consented to by each
holder of Debt Securities of such series, no such supplemental indenture may (1)
reduce the amount of Debt Securities whose holders must consent to an amendment
or a waiver; (2) reduce the rate of or change the time for payment of interest
or Additional Amounts, including default interest on any Debt Security; (3)
reduce the principal of or change the Stated Maturity of any Debt Security or
alter the provisions with respect to redemption; (4) make any Debt Security
payable in money other than that stated in the Debt Security; (5) make any
change in the types of amendment that need the approval of every affected holder
of Debt Securities; (6) with respect to the Senior Indenture, affect the ranking
of the Debt Securities; or (7) waive a Default in the payment of principal of,
any Additional Amounts payable in respect of or interest on, or with respect to,
any Debt Security.
The applicable Trustee and the Company may enter into supplemental
indentures which amend the applicable Indenture and the Debt Securities with
respect to a particular series without the consent of any holder of Debt
Securities of such series in order to: (a) cure any ambiguity, omission, defect
or inconsistency; (b) comply with such Indenture concerning the substitution of
successor corporations pursuant to a merger or consolidation; (c) comply with
any requirements of the Commission in connection with the qualification of such
Indenture under the Trust Indenture Act; (d) provide for uncertificated
securities; (e) make any change that does not materially adversely affect the
legal rights of any holder of Debt Securities under the applicable Indenture as
then in effect; (f) secure the Debt Securities and make intercreditor
arrangements with respect to any such Debt Securities (unless prohibited by such
Indenture); (g) provide for a replacement Trustee; or (h) add to the covenants
and agreements of the Company for the benefit of all the holders of all of the
Debt Securities with respect to a series and surrender any right or power
reserved for the Company in such Indenture.
DEFEASANCE AND COVENANT DEFEASANCE
Each Indenture provides that the Company may elect either (a) to terminate
(and be deemed to have satisfied) all its obligations with respect to such Debt
Securities (except for the obligations to register the transfer or exchange of
such Debt Securities, to replace mutilated, destroyed, lost or stolen Debt
Securities, to maintain an office or agency in respect of the Debt Securities,
to compensate and indemnify the applicable Trustee and to punctually pay or
cause to be paid the principal of, interest on and any Additional Amounts
payable in respect of all Debt Securities of such series when due)
("defeasance") or (b) to be released from its obligations with respect to
certain covenants, including those described above under "Certain
Covenants--Limitation on Liens" and "--Limitations on Sale and Leaseback
Transactions" above ("covenant defeasance"), upon the deposit with the Trustee,
in trust for such purpose, of money and/or U.S. Government Obligations (as
defined in the Indentures) which through the payment of principal and interest
in accordance with their terms will provide money, in an amount sufficient (in
the opinion of a nationally recognized firm of independent public accountants)
to pay the principal of, interest on and any Additional Amounts payable in
respect of the outstanding Debt Securities of such series, and any mandatory
sinking fund or analogous payments thereon, on the scheduled due dates therefor.
Such a trust may be established only if, among other things, the Company has
delivered to the Trustee an opinion of counsel (as specified in such Indenture)
with regard to certain matters, including an opinion to the effect that the
holders of such Debt Securities will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit and discharge and will
be subject to Federal income tax on the same amounts and in the same manner and
at the same times as would have been the case if such deposit and defeasance or
covenant defeasance, as the case may be, had not occurred. The Prospectus
Supplement may further describe these or other provisions, if any, permitting
defeasance or covenant defeasance with respect to the Debt Securities of any
series.
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CONCERNING THE TRUSTEE
The Senior Trustee acts as a co-agent under the Company's revolving credit
facility and maintains additional banking relationships with the Company in the
ordinary course of business. Prior to the issuance of any Subordinated Debt
Securities under the Subordinated Indenture, the Company will engage a qualified
trustee to serve as Trustee under the Subordinated Indenture. Any such Trustee
will be an "eligible trustee" under the Trust Indenture Act of 1939, as amended.
PROVISIONS APPLICABLE SOLELY TO SUBORDINATED DEBT SECURITIES
SUBORDINATION
The Subordinated Debt Securities will be subordinate and junior in right of
payment, to the extent set forth in the Subordinated Indenture, to all Senior
Indebtedness (as defined below) of the Company. If the Company should default in
the payment of any principal of, interest on or any Additional Amounts payable
in respect of any Senior Indebtedness when the same becomes due and payable,
whether at maturity or at a date fixed for prepayment or by declaration or
otherwise, then, upon written notice of such default to the Company by the
holders of such Senior Indebtedness or any trustee therefor and subject to
certain rights of the Company to dispute such default and subject to proper
notification of the Trustee, unless and until such default shall have been cured
or waived or shall have ceased to exist, no direct or indirect payment (in cash,
property, securities, by set-off or otherwise) will be made or agreed to be made
for principal of, interest on or any Additional Amounts payable in respect of
the Subordinated Debt Securities, or in respect of any redemption, retirement,
purchase or other acquisition of the Subordinated Debt Securities other than
those made in capital stock of the Company (or cash in lieu of fractional shares
thereof) pursuant to any conversion right of the Subordinated Debt Securities or
otherwise made in capital stock of the Company.
The term "Senior Indebtedness" is defined to mean Indebtedness (including
the Senior Debt Securities) of the Company outstanding at any time except (a)
any Indebtedness as to which, by the terms of the instrument creating or
evidencing the same, it is provided that such Indebtedness is not senior in
right of payment to the Subordinated Debt Securities, (b) the Subordinated Debt
Securities, (c) any Indebtedness of the Company to a wholly-owned Subsidiary of
the Company, (d) interest accruing after the filing of a petition initiating
certain events of bankruptcy or insolvency unless such interest is an allowed
claim enforceable against the Company in a proceeding under federal or state
bankruptcy laws and (e) trade payables.
If (i) without the consent of the Company a court shall enter an order for
relief with respect to the Company under the United States federal bankruptcy
laws or a judgment, order or decree adjudging the Company a bankrupt or
insolvent, or enter an order for relief for reorganization, arrangement,
adjustment or composition of or in respect of the Company under the United
States federal or state bankruptcy or insolvency laws or (ii) the Company shall
institute proceedings for the entry of an order for relief with respect to the
Company under the United States federal bankruptcy laws or for an adjudication
of insolvency, or shall consent to the institution of bankruptcy or insolvency
proceedings against it, or shall file a petition seeking, or seek or consent to
reorganization, arrangement, composition or similar relief under any applicable
law, or shall consent to the filing of such petition or to the appointment of a
receiver, custodian, liquidator, assignee, trustee, sequestrator or similar
official in respect of the Company or of substantially all of its property, or
the Company shall make a general assignment for the benefit of creditors, then
all Senior Indebtedness (including any interest thereon accruing after the
commencement of any such proceedings and any Additional Amounts payable in
respect thereof) will first be paid in full before any payment or distribution,
whether in cash, securities or other property, is made on account of the
principal of, interest on or any Additional Amounts payable in respect of the
Subordinated Debt Securities. In such event, any payment or distribution on
account of the principal of, interest on or any Additional Amounts payable in
respect of Subordinated Debt Securities, whether in cash, securities or
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other property (other than securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in the subordination provisions
with respect to the Subordinated Debt Securities, to the payment of all Senior
Indebtedness then outstanding and to any securities issued in respect thereof
under any such plan of reorganization or readjustment), which would otherwise
(but for the subordination provisions) be payable or deliverable in respect of
the Subordinated Debt Securities will be paid or delivered directly to the
holders of Senior Indebtedness in accordance with the priorities then existing
among such holders until all Senior Indebtedness (including any interest thereon
accruing after the commencement of any such proceedings and any Additional
Amounts payable in respect thereof) has been paid in full. If any payment or
distribution on account of the principal of, interest on or any Additional
Amounts payable in respect of the Subordinated Debt Securities of any character,
whether in cash, securities or other property (other than securities of the
Company or any other corporation provided for by a plan of reorganization or
readjustment the payment of which is subordinate, at least to the extent
provided in the subordination provisions with respect to the Subordinated Debt
Securities, to the payment of all Senior Indebtedness then outstanding and to
any securities issued in respect thereof under any such plan of reorganization
or readjustment), shall be received by any holder of any Subordinated Debt
Securities in contravention of any of the terms of the Subordinated Indenture
and before all the Senior Indebtedness shall have been paid in full, such
payment or distribution of securities will be received in trust for the benefit
of, and will be paid over or delivered and transferred to, the holders of the
Senior Indebtedness then outstanding in accordance with the priorities then
existing among such holders for application to the payment of all Senior
Indebtedness remaining unpaid to the extent necessary to pay all such Senior
Indebtedness remaining unpaid to the extent necessary to pay all such Senior
Indebtedness in full. In the event of any such proceeding, after payment in full
of all sums owing with respect to Senior Indebtedness, the holders of
Subordinated Debt Securities, together with the holders of any obligations of
the Company ranking on a parity with the Subordinated Debt Securities, will be
entitled to be repaid from the remaining assets of the Company the amounts at
that time due and owing on account of unpaid principal of, interest on and any
Additional Amounts payable in respect of the Subordinated Debt Securities and
such other obligations before any payment or other distribution, whether in
cash, property or otherwise, shall be made on account of any capital stock or
obligations of the Company ranking junior to the Subordinated Debt Securities
and such other obligations.
By reason of such subordination, in the event of the insolvency of the
Company, holders of Senior Indebtedness may receive more, ratably, than holders
of the Subordinated Debt Securities. In addition, other creditors of the Company
who are not holders of Subordinated Debt Securities or holders of Senior
Indebtedness may recover less, ratably, than holders of Senior Indebtedness and
may recover more, ratably, than holders of Subordinated Debt Securities. Such
subordination will not prevent the occurrence of an Event of Default or limit
the right of acceleration in respect of the Subordinated Debt Securities.
CERTAIN DEFINITIONS
"Additional Amounts" shall mean any additional amounts which are required by
a Debt Security, under circumstances specified therein, to be paid by the
Company in respect of certain taxes imposed on certain holders of such Debt
Securities, or as otherwise specified in the terms of such Debt Security, and
which are owing to such holders.
"Capitalized Lease Obligation" shall mean an obligation that is required to
be classified and accounted for as a capitalized lease for financial reporting
purposes in accordance with GAAP, and the amount of Indebtedness represented by
such obligation shall be the capitalized amount of such obligation determined in
accordance with such principles; and the Stated Maturity thereof shall be the
date of the last payment of rent or any other amount due under such lease prior
to the first date upon which such lease may be terminated by the lessee without
payment of a penalty.
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"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 GAAP.
"Default" shall mean any event that is, or after notice or passage of time
or both would be, an Event of Default.
"Indebtedness" shall mean, with respect to any Person, at any date, any of
the following, without duplication, (i) any liability, contingent or otherwise,
of such Person (A) for borrowed money (whether or not the recourse of the lender
is to the whole of the assets of such Person or only to a portion thereof), (B)
evidenced by a note, bond, debenture or similar instrument or (C) for the
payment of money relating to a Capitalized Lease Obligation or other obligation
(whether issued or assumed) relating to the deferred purchase price of property;
(ii) all conditional sale obligations and all obligations under any title
retention agreement (even if the rights and remedies of the seller under such
agreement in the event of default are limited to repossession or sale of such
property), but excluding trade accounts payable arising in the ordinary course
of business; (iii) all obligations for the reimbursement of any obligor on any
letter of credit, banker's acceptance or similar credit transaction other than
entered into in the ordinary course of business; (iv) all indebtedness of others
secured by (or for which the holder of such indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on any asset or property
(including, without limitation, leasehold interests and any other tangible or
intangible property) of such Person, whether or not such indebtedness is assumed
by such Person or is not otherwise such Person's legal liability; provided, that
if the obligations so secured have not been assumed in full by such Person or
are otherwise not such Person's legal liability in full, the amount of such
indebtedness for the purposes of this definition shall be limited to the lesser
of the amount of such indebtedness secured by such Lien or the fair market value
of the assets of the property securing such Lien; (v) all indebtedness of others
(including all interest and dividends on any Indebtedness or preferred stock of
any other Person for the payment of which is) guaranteed, directly or
indirectly, by such Person or that is otherwise its legal liability or which
such Person has agreed to purchase or repurchase or in respect of which such
Person has agreed contingently to supply or advance funds; and (vi) obligations
in respect of Currency Agreements and Interest Swap Obligations (as such
capitalized terms are defined in the Indentures).
"Issue Date" shall mean, with respect to an Indenture, the first date on
which a Debt Security is authenticated by the applicable Trustee pursuant to
such Indenture.
"Lien" shall mean any mortgage, pledge, security interest, encumbrance,
lien, charge or adverse claim affecting title or resulting in an encumbrance
against real or personal property or a security interest of any kind (including,
without limitation, any conditional sale or other title retention agreement or
lease in the nature thereof or any filing or agreement to file a financing
statement as debtor under the Uniform Commercial Code or any similar statute
other than to reflect ownership by a third party or property leased to the
Company or any of its Subsidiaries under a lease that is not in the nature of a
conditional sale or title retention agreement).
"Minority Interest" is defined as any shares of stock of any class of a
Subsidiary that are not owned by the Company or a Subsidiary.
"Permitted Liens" shall mean, with respect to any Person: (i) Liens existing
on the Issue Date; (ii) Liens on property or assets of, or any shares of stock
of or secured debt of, any corporation existing at the time such corporation
becomes a Restricted Subsidiary of the Company or at the time such corporation
is merged into the Company or any of its Restricted Subsidiaries; (iii) Liens in
favor of the Company or any of its Restricted Subsidiaries; (iv) Liens in favor
of governmental bodies to secure progress or advance payments; (v) Liens
securing industrial revenue or pollution control bonds; (vi) Liens on Property
to secure Indebtedness incurred for the purpose of (a) financing all or any part
of the purchase price of such Property incurred prior to, at the time of, or
within 180 days after, the acquisition of such Property or (b) financing all or
any part of the cost of construction, improvement, development or expansion of
any
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such Property; (vii) statutory liens or landlords', carriers', warehouseman's,
mechanics', suppliers', materialmen's, repairmen's or other like Liens arising
in the ordinary course of business and with respect to amounts not yet
delinquent or being contested in good faith by appropriate proceedings, if a
reserve or other appropriate provisions, if any, as shall be required in
conformity with GAAP shall have been made therefor; (viii) Liens on current
assets of Restricted Subsidiaries securing Indebtedness of such Restricted
Subsidiaries; and (ix) any extensions, substitutions, replacements or renewals
in whole or in part of a Lien (an "existing Lien") enumerated in clauses (i)
through (viii) above; provided that the Lien may not extend beyond (A) the
Property or Indebtedness subject to the existing Lien and (B) improvements and
construction on such Property and the Indebtedness secured by the Lien may not
exceed the Indebtedness secured at the time by the existing Lien.
"Person" shall mean any individual, corporation, partnership, limited
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof, or any other entity.
"Principal Property" means any manufacturing plant or warehouse owned or
leased by the Company or any Subsidiary, the gross book value of which exceeds
one percent of Consolidated Net Worth, 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.
"Property" of any Person means all types of real, personal, tangible,
intangible or mixed property owned by such Person whether or not included in the
most recent consolidated financial statements of the Company and its
Subsidiaries under GAAP.
"Restricted Subsidiary" shall mean any Subsidiary which owns a Principal
Property.
"Stated Maturity," when used with respect to any security or any installment
of interest thereon, shall mean the date specified in such security as the fixed
date on which the principal of such security or such installment of interest is
due and payable.
"Subsidiary" of any Person shall mean (i) any Person of which more than 50%
of the total voting power of shares of Capital Stock entitled (without regard to
the occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled, directly or
indirectly, by any Person or one or more of the Restricted Subsidiaries of that
Person or a combination thereof, and (ii) any partnership, joint venture or
other Person in which such Person or one or more of the Restricted Subsidiaries
of that Person or a combination thereof has the power to control by contract or
otherwise the board of directors or equivalent governing body or otherwise
controls such entity.
DESCRIPTION OF COMMON STOCK AND PREFERRED STOCK
COMMON STOCK
The Company is authorized to issue 50,000,000 shares of Common Stock, $.01
par value. Holders of Common Stock have full voting rights, one vote for each
share held of record, and, in the election of directors, are entitled to
cumulate their votes. Shareowners are entitled to receive such dividends, if
any, as may be declared by the Board of Directors out of funds legally available
therefore, and they are entitled to share equally and ratably in the assets
remaining, if any, after payment of all debts and liabilities upon the Company's
winding up and dissolution, subject to the rights of the holders of any
outstanding Preferred Stock. The holders of Common Stock have no preemptive or
other rights to subscribe for, or to purchase, additional shares of Common
Stock. The Common Stock is not subject to redemption or to any liability for
further calls. The outstanding shares are fully paid and nonassessable. Harris
Trust and Savings Bank is the transfer agent and registrar for the Company's
Common Stock.
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If shares of Common Stock are offered, the Prospectus Supplement relating
thereto will set forth the number of shares offered, the public offering price
and information regarding the Company's dividend history and Common Stock prices
as reflected on the New York Stock Exchange Composite Tape, including a recent
last sale price of the Common Stock.
PREFERRED STOCK
GENERAL. Under the Certificate of Incorporation, the Company's Board of
Directors is authorized to create and issue up to 500,000 shares of Preferred
Stock in one or more series and to determine the rights and preferences of each
series, to the extent permitted by the Certificate of Incorporation. As of the
date of this Prospectus, no shares of Preferred Stock had been issued. One
Hundred Sixty Thousand shares of Series A Junior Preferred Stock have been
reserved for issuance in connection with the Company's preferred stock purchase
rights described below.
Reference is made to the applicable Prospectus Supplement relating to the
series of Preferred Stock offered thereby and the Certificate of Designation
establishing such series of Preferred Stock for specific terms, including:
(i) The title and stated value of such Preferred Stock;
(ii) The number of shares of such Preferred Stock offered, the liquidation
preference per share and the initial offering price of such Preferred
Stock;
(iii) The dividend rate(s), period(s) and/or payment date(s) or method(s) of
calculation thereof applicable to such Preferred Stock;
(iv) The date from which dividends on such Preferred Stock shall accumulate,
if applicable;
(v) The procedures for any auction and remarketing, if any, for such
Preferred Stock;
(vi) The provisions for a sinking fund, if any, for such Preferred Stock;
(vii) The provisions for redemption, if applicable, of such Preferred Stock;
(viii) Any listing of such Preferred Stock on any securities exchange;
(ix) The terms and conditions, if applicable, upon which such Preferred
Stock will be convertible into Common Stock of the Company, including
the conversion price (or manner of calculation thereof);
(x) A discussion of any material Federal income tax considerations
applicable to such Preferred Stock;
(xi) The relative ranking and preferences of such Preferred Stock as to
dividend rights and rights upon liquidation, dissolution or winding up
of the affairs of the Company;
(xii) Any limitations on issuance of any series of Preferred Stock ranking
senior to or on a parity with such series of Preferred Stock as to
dividend rights and rights upon liquidation, dissolution or winding up
of the affairs of the Company; and
(xiii) Any other specific terms, preferences, rights (including, without
limitation, voting rights), limitations or restrictions of such
Preferred Stock.
LIQUIDATION PREFERENCE. Unless otherwise specified in the applicable
Prospectus Supplement, upon any liquidation, dissolution or winding up of the
Company whether voluntary or involuntary, the holders of any series of Preferred
Stock in respect of which this Prospectus is being delivered will have
preference and priority over the Common Stock and any other class of stock or
series of a class of stock of the Company ranking on liquidation junior to such
series of Preferred Stock, for payment out of the assets of the
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Company or proceeds thereof, whether from capital or surplus, in the amount set
forth in the applicable Prospectus Supplement. After such payment, the holders
of such series of Preferred Stock will be entitled to no other payments. If, in
the case of any such liquidation, dissolution or winding up of the Company, the
assets of the Company or proceeds thereof shall be insufficient to make the full
liquidation payment in respect of such series of Preferred Stock and liquidating
payments on any other series of Preferred Stock ranking as to liquidation on a
parity with such series, then those assets and proceeds will be distributed
among the holders of such series of Preferred Stock and any such other series of
Preferred Stock ratably in accordance with the respective amounts which would be
payable on such shares of such series of Preferred Stock and such other series
of Preferred Stock if all amounts thereon were paid in full. A sale of all or
substantially all of the Company's assets or a consolidation or merger of the
Company with one or more corporations shall not be deemed to be a liquidation,
dissolution or winding up of the Company.
DEPOSITARY SHARES
GENERAL. The Company may, at its option, elect to issue fractional shares
of Preferred Stock, rather than full shares of Preferred Stock. In the event
such option is exercised, the Company may elect to have a Depositary (as defined
below) issue receipts for Depositary Shares, each receipt representing a
fraction (to be set forth in the Prospectus Supplement relating to a particular
series of Preferred Stock) of a share of a particular series of Preferred Stock
as described below.
The shares of any series of Preferred Stock represented by Depositary Shares
will be deposited under a Deposit Agreement ("Deposit Agreement") between the
Company and a bank or trust company selected by the Company having its principal
office in the United States and having a combined capital and surplus of at
least $50,000,000 ("Depositary"). Subject to the terms of the Deposit Agreement,
each owner of a Depositary Share will be entitled, in proportion to the
applicable fraction of a share of Preferred Stock represented by such Depositary
Share, to all the rights and preferences of the Preferred Stock represented
thereby (including dividend, voting, redemption and liquidation rights).
The Depositary Shares will be evidenced by depositary receipts issued
pursuant to the Deposit Agreement ("Depositary Receipts"). Depositary Receipts
will be distributed to those persons purchasing the fractional shares of
Preferred Stock in accordance with the terms of an offering of the Preferred
Stock. In connection with the issuance of any series of Preferred Stock
represented by Depositary Shares, the forms of Deposit Agreement and Depositary
Receipt will be filed as exhibits to the Registration Statement of which this
Prospectus is a part, and the following summary is qualified in its entirety by
reference to such exhibits.
Pending the preparation of definitive engraved Depositary Receipts, the
Depositary may, upon the written order of the Company, issue temporary
Depositary Receipts substantially identical to (and entitling the holders
thereof to all the rights pertaining to) the definitive Depositary Receipts but
not in definitive form. Definitive Depositary Receipts will be prepared
thereafter without unreasonable delay, and temporary Depositary Receipts will be
exchangeable for definitive Depositary Receipts at the Company's expense.
Upon surrender of Depositary Receipts at the office of the Depositary and
upon payment of the charges provided in the Deposit Agreement and subject to the
terms thereof, a holder of Depositary Receipts is entitled to have the
Depositary deliver to such holder the whole shares of Preferred Stock relating
to the surrendered Depositary Receipts. Holders of Depositary Shares will be
entitled to receive whole shares of the related series of Preferred Stock on the
basis set forth in the related Prospectus Supplement for such series of
Preferred Stock, but holders of such whole shares will not thereafter be
entitled to receive Depositary Shares therefor. If the Depositary Receipts
delivered by the holder evidence a number of Depositary Shares in excess of the
number of Depositary Shares representing the number of whole shares of the
related series of Preferred Stock to be withdrawn, the Depositary will deliver
to such holder at the same time a new Depositary Receipt evidencing such excess
number of Depositary Shares.
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DIVIDENDS AND OTHER DISTRIBUTIONS. The Depositary will distribute all cash
dividends or other cash distribution received in respect of the Preferred Stock
to the record holders of Depositary Shares relating to such Preferred Stock in
proportion to the numbers of such Depositary Shares owned by such holders.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of Depositary Shares
entitled thereto, unless the Depositary determines that it is not feasible to
make such distribution, in which case the Depositary may, with the approval of
the Company, sell such property and distribute the net proceeds from such sale
to such holders.
REDEMPTION OF DEPOSITARY SHARES. If a series of Preferred Stock represented
by Depositary Shares is subject to redemption, the Depositary Shares will be
redeemed from the proceeds received by the Depositary resulting from the
redemption, in whole or in part, of such series of Preferred Stock held by the
Depositary. The redemption price per Depositary Share will be equal to the
applicable fraction of the redemption price per share payable with respect to
such series of the Preferred Stock. Whenever the Company redeems shares of
Preferred Stock held by the Depositary, the Depositary will redeem as of the
same redemption date the number of Depositary Shares representing shares of
Preferred Stock so redeemed. If less than all the Depositary Shares are to be
redeemed, the Depositary Shares to be redeemed will be selected by lot or pro
rata as may be determined by the Depositary.
VOTING THE PREFERRED SHARES. Upon receipt of notice of any meeting at which
the holders of the Preferred Stock are entitled to vote, the Depositary will
mail the information contained in such notice of meeting to the record holders
of the Depositary Shares relating to such Preferred Stock. Each record holder of
such Depositary Shares on the record date (which will be the same date as the
record date for the Preferred Stock) will be entitled to instruct the Depositary
as to the exercise of the voting rights pertaining to the amount of the
Preferred Stock represented by such holder's Depositary Shares. The Depositary
will endeavor, insofar as practicable, to vote the amount of the Preferred Stock
represented by such Depositary Shares in accordance with such instructions, and
the Company will agree to take all action which may be deemed necessary by the
Depositary in order to enable the Depositary to do so. The Depositary will
abstain from voting shares of the Preferred Stock to the extent it does not
receive specific instructions from the holders of Depositary Shares representing
such Preferred Stock.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT. The form of Depositary
Receipt evidencing the Depositary Shares and any provision of the Deposit
Agreement may at any time be amended by agreement between the Company and the
Depositary. However, any amendment which materially and adversely alters the
rights of the holders of Depositary Shares will not be effective unless such
amendment has been approved by the holders of at least a majority of the
Depositary Shares then outstanding. The Deposit Agreement may be terminated by
the Company or the Depositary only if (i) all outstanding Depositary Shares have
been redeemed or (ii) there has been a final distribution in respect to the
Preferred Stock in connection with any liquidation, dissolution or winding up of
the Company and such distribution has been distributed to the holders of
Depositary Receipts.
CHARGES OF DEPOSITARY. The Company will pay all transfer and other taxes
and governmental charges arising solely from the existence of the depositary
arrangements. The Company will pay charges of the Depositary in connection with
the initial deposit of the Preferred Stock and any redemption of the Preferred
Stock. Holders of Depositary Receipts will pay other transfer and other taxes
and governmental charges and such other charges as are expressly provided in the
Deposit Agreement to be for their accounts.
MISCELLANEOUS. The Depositary will forward to the record holders of the
Depositary Shares relating to such Preferred Stock all reports and
communications from the Company which are delivered to the Depositary.
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Neither the Depositary or the Company will be liable if it is prevented or
delayed by law or any circumstance beyond its control in performing its
obligations under the Deposit Agreement. The obligations of the Company and the
Depositary under the Deposit Agreement will be limited to performance in good
faith of their duties thereunder, and they will not be obligated to prosecute or
defend any legal proceeding in respect of any Depositary Shares or Preferred
Stock unless satisfactory indemnity is furnished. They may rely upon written
advice of counsel or accountants, or information provided by persons presenting
Preferred Stock for deposit, holders of Depositary Receipts or other persons
believed to be competent and on documents believed to be genuine.
RESIGNATION AND REMOVAL OF DEPOSITARY. The Depositary may resign at any
time by delivering to the Company notice of its election to do so, and the
Company may at any time remove the Depositary, any such resignation or removal
to take effect upon the appointment of a successor Depositary and its acceptance
of such appointment. Such successor Depositary must be appointed within 60 days
after delivery of the notice of resignation or removal and must be a bank or
trust company having its principal office in the United States and having a
combined capital and surplus of at least $50,000,000.
CERTAIN PROVISIONS OF THE CERTIFICATE OF INCORPORATION
The Company's Restated Certificate of Incorporation, as amended (the
"Certificate of Incorporation") provides for a classified Board of Directors
with two-year staggered terms. It also provides that shareowners may remove an
incumbent director only for "cause", and then only upon the affirmative vote of
at least 75% of the outstanding shares entitled to vote on the election of
directors. "Cause" is defined as conviction of a felony which is no longer
subject to direct appeal or adjudication of liability for negligence or
misconduct in the performance of a director's duty to the Company which is no
longer subject to direct appeal.
The Company's Certificate of Incorporation also requires the affirmative
vote of 75% of each class of the Company's outstanding shares of capital stock
to amend the Certificate of Incorporation or the Bylaws of the Company.
Shareowners may not act by written consent without a meeting.
Certain business combinations and other significant corporate transactions
involving the Company and any beneficial owner of more than 25% of the
outstanding voting shares of the Company (a "Substantial Stockholder") must be
approved by at least 75% of the Company's outstanding shares entitled to vote
thereon, and also by a majority of all votes entitled to be cast in respect of
shares held by shareowners other than the Substantial Stockholder, unless such
transaction has been approved by the Company's Board of Directors or unless the
shareowners of the Company shall receive consideration for the transaction not
less than the highest per share price paid by the Substantial Stockholder in
acquiring any shares of stock of the Company.
DESCRIPTION OF PREFERRED STOCK PURCHASE RIGHTS
A dividend of one Series A Junior Preferred Stock purchase right (a "Right")
per share of Common Stock was distributed to shareowners in June 1986 so that
each share of Common Stock now also represents a Right (expiring June 11, 2006)
to buy 1/100th of a share of Series A Junior Preferred Stock from the Company
for $100. The Rights were issued pursuant to a Rights Agreement, dated as of
June 11, 1986, as amended as of August 21, 1990, and as further amended as of
May 31, 1996, between the Company and Centerre Trust Company of St. Louis, as
Rights Agent.
Rights are not exercisable or transferable apart from the Common Stock until
the earlier of (i) ten days following the public announcement that a person or
group of affiliated or associated persons (other than the Company, its
subsidiaries or any employee benefit plan of the Company) (an "Acquiring
Person") has acquired, or obtained the right to acquire, beneficial ownership of
15% or more of the outstanding shares of Common Stock (the "Stock Acquisition
Date") or (ii) ten days following the commencement of, or announcement of an
intention to make, a tender offer or exchange offer if, upon consummation
thereof,
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such person or group (other than the Company, its subsidiaries or any employee
benefit plan of the Company) would be the beneficial owner of 15% or more of the
outstanding shares of Common Stock (the earlier of such dates being the
"Distribution Date").
In the event that, on or after a Distribution Date, an Acquiring Person
becomes a 15% or more holder, each Right holder, except the Acquiring Person,
has the right to receive, upon exercise at the then current exercise price,
shares of Common Stock (or, under certain circumstances, cash, property or other
Company securities) valued at twice the then applicable exercise price of the
Right. Similarly, on or after the Distribution Date, the Rights may be
exercisable at the then current exercise price for the other party's stock (or
assets) having a value of twice the exercise price if the Company is acquired in
a merger or other business combination where it does not survive or survives
with a change or exchange of its shares of Common Stock or if 50 percent or more
of its assets, earning power or cash flow is sold or transferred. Generally,
Rights may be redeemed by the Company for five cents each prior to the Stock
Acquisition Date (subject to extension by the Company).
The exercise price and the number of units of Series A Junior Preferred
Stock or other securities or property issued upon exercise of the Rights are
subject to adjustment to prevent dilution in the event of (i) a stock dividend,
subdivision, combination or reclassification of the Series A Junior Preferred
Stock, (ii) the grant to Series A Preferred Stockholders of certain rights or
warrants, or (iii) the distribution to Series A Junior Preferred Stockholders of
debt or assets, other than regular quarterly cash dividends, or of certain
rights or warrants. With certain exceptions, no adjustments will be made until
cumulative adjustments equal or exceed a 1% adjustment.
The rights plan exempts from its application any acquisition by an
underwriter for the purpose of resale in a public distribution. The Rights will
attach to shares of Common Stock sold as Offered Securities or delivered upon
conversion or exchange of any convertible or exchangeable Offered Securities.
PLAN OF DISTRIBUTION
GENERAL
The Company may sell the Securities (i) through underwriters or dealers;
(ii) directly to one or more other purchasers; (iii) through agents; or (iv) to
both investors and/or dealers through a specific bidding or auction process or
otherwise. The Prospectus Supplement with respect to the Offered Securities will
set forth the terms of the offering of such Offered Securities, including the
name or names of any underwriters, dealers or agents, the purchase price of such
Offered Securities and the proceeds to the Company from such sale, any
underwriting discounts and other items constituting underwriters' compensation,
any initial public offering price and any discounts, commissions or concessions
allowed or reallowed or paid to dealers, and any bidding or auction process. Any
initial offering price and any discounts, concessions or commissions allowed or
reallowed or paid to dealers may be changed from time to time.
If underwriters are used in an offering, the Offered Securities will be
acquired by the underwriters for their own account. The Offered Securities may
be sold from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. The Offered Securities may be offered to the public either
through underwriting syndicates represented by one or more managing underwriters
or directly by one or more of such firms. The specific managing underwriter or
underwriters, if any, will be set forth in the Prospectus Supplement relating to
the Offered Securities together with the members of the underwriting syndicate,
if any. Unless otherwise set forth in the Prospectus Supplement, the obligations
of the underwriters to purchase the Offered Securities will be subject to
certain conditions precedent and the underwriters will be obligated to purchase
all such Offered Securities if any are purchased.
Offered Securities may be sold directly by the Company or through agents
designated by the Company from time to time. The Prospectus Supplement will set
forth the name of any agent involved in the offer or
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sale of the Offered Securities in respect of which the Prospectus Supplement is
delivered and any commissions payable by the Company to such agent. Unless
otherwise indicated in the Prospectus Supplement, any such agent is acting on a
best efforts basis for the period of its appointment.
Any underwriters, dealers, or agents participating in the distribution of
the Offered Securities may be deemed to be underwriters and any discounts or
commissions received by them on the sale or resale of the Offered Securities may
be deemed to be underwriting discounts and commissions under the Securities Act.
Agents, dealers or underwriters may be entitled, under agreements entered into
with the Company, to indemnification by the Company against certain liabilities,
including liabilities under the Securities Act, and to contribution with respect
to payments which the agents, dealers or underwriters may be required to make in
respect thereof. Agents, dealers and underwriters may engage in transactions
with or perform services for the Company in the ordinary course of business.
The Offered Securities, other than the Common Stock, will be a new issue or
issues of securities with no established trading market. Any Common Stock issued
by the Company pursuant to this Registration Statement will be listed. Unless
otherwise indicated in a Prospectus Supplement, the Company does not currently
intend to list any Offered Debt Securities on any securities exchange. No
assurance can be given that the underwriters, dealers or agents, if any,
involved in the sale of the Offered Securities will make a market in such
Offered Securities. Whether or not any of the Offered Securities are listed on a
national securities exchange or the underwriters, dealers or agents, if any,
involved in the sale of the Offered Securities make a market in such Offered
Securities, no assurance can be given as to the liquidity of the trading market
for such Offered Securities.
DELAYED DELIVERY ARRANGEMENTS
If so indicated in the Prospectus Supplement, the Company may authorize
underwriters or other persons acting as the Company's agents to solicit offers
by certain institutions to purchase Offered Securities from the Company pursuant
to contracts providing for payment and delivery on a future date. Institutions
with which such contracts may be made include commercial and savings banks,
insurance companies, pension funds, investment companies, educational and
charitable institutions and others, but in all cases will be subject to the
approval of the Company. The obligations of any purchaser under any such
contract will be subject to the condition that the purchase of the Offered
Securities shall not at the time of delivery be prohibited under the laws of the
jurisdiction to which such purchaser is subject. The underwriters and such
agents will not have any responsibility in respect of the validity or
performance of such contracts.
LEGAL OPINIONS
The validity of the Securities offered hereby will be passed upon for the
Company by McDermott, Will & Emery, Chicago, Illinois, special securities
counsel for the Company. The Company is advised that McDermott, Will & Emery
attorneys indirectly own 2,000 shares of the Company's Common Stock. Certain
legal matters relating to this offering will be passed upon for the Underwriters
by Mayer, Brown & Platt, Chicago, Illinois.
EXPERTS
The consolidated financial statements of the Company and its subsidiaries
incorporated in this Prospectus by reference to the Annual Report on Form 10-K
for the year ended April 30, 1997, have been so incorporated in reliance on the
report of Price Waterhouse LLP, independent accountants, given on the authority
of said firm as experts in auditing and accounting.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<S> <C>
Estimated Expenses:
SEC filing fee.................................................... $ 90,910
Printing and Engraving............................................ 30,000
Fees of Trustees/Transfer Agents/Registrars....................... 15,000
Accountants' Fees................................................. 15,000
Rating Service Fees............................................... 85,000
Legal Fees and Expenses........................................... 70,000
Miscellaneous..................................................... 19,090
---------
Total......................................................... $ 325,000
---------
---------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The General Corporation Law of Delaware (Section 102) allows a corporation
to eliminate the personal liability of directors of a corporation to the
corporation or to any of its stockholders for monetary damage for a breach of
his/her fiduciary duty as a director, except in the case where the director
breached his/her duty of loyalty, failed to act in good faith, engaged in
intentional misconduct or knowingly violated a law, authorized the payment of a
dividend or approved a stock repurchase in violation of Delaware corporate law
or derived an improper personal benefit. The Restated Certificate of
Incorporation, as amended, of Kellwood Company (the "Company"), contains a
provision which eliminates directors' personal liability as set forth above.
The General Corporation Law of Delaware (Section 145) gives Delaware
corporations broad powers to indemnify their present and former directors and
officers and those of affiliated corporations against expenses incurred in the
defense of any lawsuit to which they are made parties by reason of being or
having been such directors or officers, subject to specified conditions and
exclusions; gives a director or officer who successfully defends an action the
right to be so indemnified; and authorizes the Company to buy directors' and
officers' liability insurance. Such indemnification is not exclusive of any
other right to which those indemnified may be entitled under any bylaw,
agreement, vote of stockholders or otherwise.
The Company's Restated Certificate of Incorporation, as amended, provides
for indemnification to the fullest extent as expressly authorized by Section 145
of the General Corporation Law of Delaware for directors, officers and employees
of the Company and also to persons who are serving at the request of the Company
as directors, officers or employees of other corporations (including
subsidiaries). This right of indemnification is not exclusive of any other right
which any person may acquire under any statute, bylaw, agreement, contract, vote
of stockholders or otherwise.
The Company has purchased liability policies which indemnify its officers
and directors against loss arising from claims by reason of their legal
liability for acts as officers, subject to limitations and conditions as set
forth in the policies.
Pursuant to agreements which the Company may enter into with underwriters or
agents (forms of which are or will be filed as exhibits to this Registration
Statement) officers and directors of the Company may be entitled to
indemnification by such underwriters or agents against certain liabilities,
including liabilities under the Securities Act of 1933, as amended, arising from
information appearing in the Registration Statement or any Prospectus or
Prospectus Supplement which has been furnished to the Company by such
underwriters or agents.
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ITEM 16. EXHIBITS.
<TABLE>
<C> <S>
*1(a) Form of Underwriting Agreement for Debt Securities.
**1(b) Form of Underwriting Agreement for Preferred Stock.
**1(c) Form of Underwriting Agreement for Common Stock.
3(a) Restated Certificate of Incorporation, as amended, of Kellwood Company,
incorporated herein by reference to Form 10-Q for the quarter ended July
31, 1987, SEC File No. 1-7340.
3(b) Bylaws, as amended, of Kellwood Company, incorporated herein by reference
to Form 10-K for the fiscal year ended April 30, 1996, SEC File No.
1-7340.
*4(a) Form of Indenture for senior debt securities dated as of September 30,
1997 between Kellwood Company and The Chase Manhattan Bank, as Trustee.
*4(b) Form of Indenture for subordinated debt securities between Kellwood
Company and a Trustee to be named.
**4(c) Form of Certificate of Designation, Preferences and Rights for Preferred
Stock.
**4(d) Form of Deposit Agreement and Depository Receipt.
4(e) Rights Agreement with respect to Rights to Acquire Series A Junior
Preferred Stock between the registrant and Centerre Trust Company of St.
Louis, incorporated herein by reference to Registration Statement on
Form 8-A, effective June 24, 1986, Amendment dated August 21, 1990,
incorporated herein by reference to Form 10-Q for the quarter ended
October 31, 1990, and Amendment dated May 31, 1996 incorporated herein
by reference to Form 8-A/A effective June 3, 1996, SEC File No. 1-7340.
*5 Opinion and Consent of McDermott, Will & Emery.
12 Statement on the Computation of Ratio of Earnings to Fixed Charges.
23(a) Consent of Price Waterhouse LLP, Independent Accountants.
23(b) Consent of McDermott, Will & Emery is contained in their opinion (Exhibit
5).
24 Powers of Attorney (included on signature page).
*25 Statement of eligibility and qualification of The Chase Manhattan Bank.
</TABLE>
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* To be filed by Amendment to this Registration Statement.
** To be filed as an exhibit to Form 8-K in reference to the specific offering
of Securities, if any, to which it relates.
ITEM 17. UNDERTAKINGS.
The undersigned Registrant 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 or any
material change to such information 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
II-2
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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 Securities offered
herein, 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 this Registration Statement shall be deemed
to be a new registration statement relating to the Securities offered
herein, and the offering of such Securities at that time shall be deemed to
be the initial bona fide offering thereof.
(5) That for purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus filed as
part of this Registration Statement in reliance upon Rule 430A and contained
in a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1)
or (4) under the Securities Act of 1933 shall be deemed to be a part of this
Registration Statement as of the time it was declared effective.
(6) That for purposes 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.
(7) To file an application for the purpose of determining the
eligibility of the Trustee to act under Section 310 of the Trust Indenture
Act in accordance with the rules and regulations prescribed by the
Commission under Section 305(b)(2) of such Act.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions set forth or described in Item 15 of this
Registration Statement, or otherwise, the Registrant has been advised that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person in the successful defense of any action, suit or
proceeding) is asserted against the Registrant by such director, officer or
controlling person, in connection with the Securities registered hereby, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
II-3
<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 ST. LOUIS, AND STATE OF MISSOURI, ON THE 26TH DAY OF
SEPTEMBER, 1997.
<TABLE>
<S> <C> <C>
KELLWOOD COMPANY
By: /s/ THOMAS H. POLLIHAN
-----------------------------------------
Thomas H. Pollihan
VICE PRESIDENT, SECRETARY
AND GENERAL COUNSEL
</TABLE>
POWER OF ATTORNEY
EACH PERSON WHOSE SIGNATURE APPEARS BELOW CONSTITUTES AND APPOINTS JAMES C.
JACOBSEN AND THOMAS H. POLLIHAN AND EACH OF THEM (WITH FULL POWER TO ACT ALONE),
HIS/HER TRUE AND LAWFUL ATTORNEY-IN-FACT AND AGENT, WILL FULL POWER OF
SUBSTITUTION AND RESUBSTITUTION, FOR HIM/HER IN HIS/HER NAME, PLACE AND STEAD,
IN ANY AND ALL CAPACITIES, TO SIGN AND FILE, WITH THE SECURITIES AND EXCHANGE
COMMISSION, ANY AND ALL AMENDMENTS (INCLUDING POST-EFFECTIVE AMENDMENTS) TO THE
REGISTRATION STATEMENT AND ANY REGISTRATION STATEMENT PURSUANT TO RULE 462(B)
UNDER THE SECURITIES ACT OF 1933 FOR REGISTERING ADDITIONAL SECURITIES OF
KELLWOOD COMPANY COMPRISING A PART OF THE SAME OFFERING UNDER THIS REGISTRATION
STATEMENT, GRANTING UNTO EACH SUCH ATTORNEY-IN-FACT AND AGENT FULL POWER AND
AUTHORITY TO DO AND PERFORM EACH AND EVERY ACT AND THING REQUISITE AND NECESSARY
TO BE DONE, AS FULLY TO ALL INTENTS AND PURPOSES AND HE/SHE MIGHT OR COULD DO IN
PERSON, HEREBY RATIFYING AND CONFIRMING ALL THAT SUCH ATTORNEY-IN-FACT AND AGENT
OR THEIR SUBSTITUTES MAY LAWFULLY DO OR CAUSE TO BE DONE BY VIRTUE HEREOF.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES INDICATED ON THE 26TH DAY OF SEPTEMBER, 1997.
SIGNATURE TITLE
- ------------------------------ --------------------------
Director, Chairman of the
/s/ WILLIAM J. MCKENNA Board, Chief Executive
- ------------------------------ Officer (principal
William J. McKenna executive officer)
/s/ HAL J. UPBIN
- ------------------------------ Director, President and
Hal J. Upbin Chief Operating Officer
/s/ JAMES C. JACOBSEN Director, Vice Chairman
- ------------------------------ (principal financial and
James C. Jacobsen accounting officer)
/s/ RAYMOND F. BENTELE
- ------------------------------ Director
Raymond F. Bentele
II-4
<PAGE>
SIGNATURE TITLE
- ------------------------------ --------------------------
/s/ EDWARD S. BOTTUM
- ------------------------------ Director
Edward S. Bottum
/s/ KITTY G. DICKERSON
- ------------------------------ Director
Kitty G. Dickerson
/s/ LEONARD A. GENOVESE
- ------------------------------ Director
Leonard A. Genovese
/s/ JERRY M. HUNTER
- ------------------------------ Director
Jerry M. Hunter
/s/ JAMES S. MARCUS
- ------------------------------ Director
James S. Marcus
/s/ FRED W. WENZEL
- ------------------------------ Director
Fred W. Wenzel
II-5
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBITS
- ------
<C> <S>
*1(a) Form of Underwriting Agreement for Debt Securities.
**1(b) Form of Underwriting Agreement for Preferred Stock.
**1(c) Form of Underwriting Agreement for Common Stock.
3(a) Restated Certificate of Incorporation, as amended, of Kellwood Company, incorporated herein by
reference to Form 10-Q for the quarter ended July 31, 1987, SEC File No. 1-7340.
3(b) Bylaws, as amended, of Kellwood Company, incorporated herein by reference to Form 10-K for the
fiscal year ended April 30, 1996, SEC File No. 1-7340.
*4(a) Form of Indenture for senior debt securities dated as of September 30, 1997 between Kellwood
Company and The Chase Manhattan Bank, as Trustee.
*4(b) Form of Indenture for subordinated debt securities between Kellwood Company and a Trustee to be
named.
**4(c) Form of Certificate of Designation, Preferences and Rights for Preferred Stock.
**4(d) Form of Deposit Agreement and Depository Receipt.
4(e) Rights Agreement with respect to Rights to Acquire Series A Junior Preferred Stock between the
registrant and Centerre Trust Company of St. Louis, incorporated herein by reference to
Registration Statement on Form 8-A, effective June 24, 1986, Amendment dated August 21, 1990,
incorporated herein by reference to Form 10-Q for the quarter ended October 31, 1990, and
Amendment dated May 31, 1996 incorporated herein by reference to Form 8-A/A effective June 3,
1996, SEC File No. 1-7340.
*5 Opinion and Consent of McDermott, Will & Emery.
12 Statement on the Computation of Ratio of Earnings to Fixed Charges.
23(a) Consent of Price Waterhouse LLP, Independent Accountants.
23(b) Consent of McDermott, Will & Emery is contained in their opinion (Exhibit 5).
24 Powers of Attorney (included on signature page).
*25 Statement of eligibility and qualification of The Chase Manhattan Bank.
</TABLE>
- ------------------------
* To be filed by Amendment to this Registration Statement.
** To be filed as an exhibit to Form 8-K in reference to the specific offering
of Securities, if any, to which it relates.
<PAGE>
EXHIBIT 12
KELLWOOD COMPANY
STATEMENT ON THE
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
THREE MONTHS ENDED
JULY 31 FISCAL YEAR ENDED APRIL 30
-------------------- -----------------------------------------------------
1997 1996 1997 1996 1995 1994 1993
--------- --------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings before tax.................. $ 12,416 $ 10,018 $ 64,826 $ 48,524 $ 28,496 $ 61,014 $ 51,894
Fixed charges:
Interest expense and amortization
of debt issuance cost............ $ 6,928 $ 5,245 $ 21,755 $ 23,070 $ 19,193 $ 15,998 $ 14,103
Rentals--25%....................... $ 1,043 $ 962 $ 4,009 $ 3,993 $ 3,582 $ 2,904 $ 2,986
Total fixed charges................ $ 7,971 $ 6,207 $ 25,764 $ 27,063 $ 22,775 $ 18,902 $ 17,089
Earnings before tax and fixed
charges.......................... $ 20,387 $ 16,225 $ 90,590 $ 75,587 $ 51,271 $ 79,916 $ 68,983
Ratio of earnings to fixed
charges.......................... 2.56 2.61 3.52 2.79 2.25 4.23 4.04
</TABLE>
<PAGE>
EXHIBIT 23(A)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
May 29, 1997, which appears on page 14 of the 1997 Annual Report to Shareowners
of Kellwood Company, which is incorporated by reference in Kellwood Company's
Annual Report on Form 10-K for the year ended April 30, 1997. We also consent to
the incorporation by reference of our report on the Financial Statement
Schedule, which appears on page 12 of such Annual Report on Form 10-K. We also
consent to the references to us under the headings "Experts" in such Prospectus.
PRICE WATERHOUSE LLP
St. Louis, Missouri
September 26, 1997
