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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 15, 1998
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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KIMBERLY-CLARK CORPORATION
(Exact name of registrant as specified in its charter)
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DELAWARE 39-0394230
(State of incorporation) (I.R.S. Employer Identification No.)
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P.O. BOX 619100
DALLAS, TEXAS 75261-9100
(972) 281-1200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
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O. GEORGE EVERBACH
SENIOR VICE PRESIDENT --
LAW AND GOVERNMENT AFFAIRS
KIMBERLY-CLARK CORPORATION
P.O. BOX 619100
DALLAS, TEXAS 75261-9100
(972) 281-1200
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
ALLAN G. SPERLING
CLEARY, GOTTLIEB, STEEN & HAMILTON
1 LIBERTY PLAZA
NEW YORK, NEW YORK 10006
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
FROM TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
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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, please check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
OF SECURITIES TO BE REGISTERED REGISTERED(1) PER UNIT(2) PRICE(2) REGISTRATION FEE(3)
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Debt Securities....................... $500,000,000(3) 100% $500,000,000 $139,000
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(1) In United States dollars or the equivalent thereof in any other currency,
currency unit or composite currency.
(2) Estimated solely for the purpose of determining the registration fee.
Pursuant to Rule 429 promulgated under the Securities Act of 1933, the amount of
registration fee does not include $59,000 previously paid relating to
$200,000,000 of Debt Securities previously registered pursuant to Registration
Statement No. 333-45399, which remain unissued at the close of business on
December 14, 1998.
(3) Such amount represents the principal amount of any Debt Securities issued at
their principal amount and the issue price rather than the principal amount of
any Debt Securities issued at an original issue discount.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
THE PROSPECTUS CONTAINED HEREIN IS, PURSUANT TO RULE 429 UNDER THE
SECURITIES ACT OF 1933, A COMBINED PROSPECTUS WHICH MEETS THE REQUIREMENTS OF
SUCH ACT FOR USE IN CONNECTION WITH THE DEBT SECURITIES COVERED BY THIS
REGISTRATION STATEMENT AND THE DEBT SECURITIES COVERED BY THE REGISTRANT'S
REGISTRATION STATEMENT NO. 333-45399. THIS REGISTRATION STATEMENT ALSO
CONSTITUTES POST-EFFECTIVE AMENDMENT NO. 1 WITH RESPECT TO THE REGISTRANT'S
REGISTRATION STATEMENT NO. 333-45399, AND SUCH POST-EFFECTIVE AMENDMENT SHALL
BECOME EFFECTIVE, CONCURRENTLY WITH THE EFFECTIVENESS OF THIS REGISTRATION
STATEMENT, IN ACCORDANCE WITH SECTION 8(c) OF THE SECURITIES ACT OF 1933.
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PRELIMINARY PROSPECTUS SUBJECT TO COMPLETION
DATED DECEMBER 15, 1998
[KIMBERLY CLARK LOGO] Corporation
Debt Securities
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By this Prospectus, we may offer and sell our Debt Securities for proceeds of up
to $700,000,000 or the equivalent thereof in any other currency, currency unit
or composite currency.
This Prospectus sets forth the general terms of the Debt Securities. We will
provide the specific terms of the Debt Securities in a Prospectus Supplement.
You should read this Prospectus and the Prospectus Supplement carefully before
you invest.
We may offer the Debt Securities directly or through underwriters, agents or
dealers, which may include Salomon Smith Barney and Morgan Stanley & Co.
Incorporated. The Prospectus Supplement will give the names of such
underwriters, agents or dealers and describe the specific terms of the plan of
distribution for the offering.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THE DEBT SECURITIES OR DETERMINED IF
THIS PROSPECTUS IS ACCURATE OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus is , 1998.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THE DEBT SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THE DEBT SECURITIES AND IT IS NOT THE SOLICITATION OF AN OFFER TO BUY
THE DEBT SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
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WHERE TO FIND MORE INFORMATION
Kimberly Clark Corporation ("Kimberly-Clark" or the "Corporation") has filed
with the Securities and Exchange Commission (the "SEC") a registration statement
under the Securities Act of 1933, as amended, with respect to the Debt
Securities that we may offer and sell. This Prospectus is part of that
registration statement. As permitted by the rules of the SEC, this Prospectus
does not contain all the information set forth in the registration statement or
the exhibits to the registration statement.
We file annual, quarterly and current reports, proxy and information statements
and other information with the SEC. You may read and copy any document we file
at the SEC's public reference rooms at 450 Fifth Street, N.W., Washington, D.C.
20549 and at the following SEC regional offices: Room 3190, Suite 1400, 500 West
Madison Street, Chicago, Illinois 60661-2511; and 13th Floor, 7 World Trade
Center, New York, New York 10048. You may call the SEC at 1-800-SEC-0330 for
more information concerning its public reference rooms and regional offices. Our
SEC filings also are available to the public from the SEC's web site at
http://www.sec.gov. You also may inspect our SEC reports and other information
at the New York Stock Exchange, 20 Broad Street, New York, New York 10005; the
Chicago Stock Exchange, 440 South LaSalle, Chicago, Illinois 60605; and the
Pacific Stock Exchange, 301 Pine Street, San Francisco, California 94104.
The SEC allows us to "incorporate by reference" the information we file with
them, which means we can disclose information to you by referring you to those
documents. Information incorporated by reference is part of this Prospectus.
Later information filed with the SEC updates and supersedes this Prospectus.
We incorporate by reference the documents listed below and any future filings
made with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934 until this offering is completed:
- Our Annual Report on Form 10-K for the year ended December 31, 1997,
including portions of our 1997 annual stockholders' report and 1998 proxy
statement incorporated by reference into the Form 10-K.
- Our Quarterly Reports on Form 10-Q for the quarters ended March 31, 1998,
June 30, 1998 and September 30, 1998.
- Our Current Reports on Form 8-K dated January 30, 1998 and February 27,
1998.
We will provide to you at no charge, upon your written or oral request, a copy
of these filings or any other information incorporated by reference in this
Prospectus, other than exhibits to such filings which are not specifically
incorporated by reference therein. You may request such information by
contacting us at Kimberly-Clark Corporation, P.O. Box 619100, Dallas, Texas
75261-9100 (telephone 972-281-1200); Attention: Donald M. Crook, Secretary.
THE CORPORATION
Kimberly-Clark manufactures and markets throughout the world a wide range of
products for personal, business and industrial uses. Most of these products are
made from natural and synthetic fibers using advanced technologies in
absorbency, fibers and nonwovens. Our
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businesses are separated into three segments: Personal Care Products;
Tissue-Based Products; and Newsprint, Paper and Other. Consolidated net sales of
our products and services totaled approximately $12.5 billion in 1997.
Personal Care Products include disposable diapers, training and youth pants;
feminine care and adult incontinence care products; wet wipes; health care
products; and related products. Products in this business segment are primarily
for household use and are sold under a variety of well-known brand names,
including Huggies, Pull-Ups, GoodNites, Kotex, New Freedom, Lightdays, Depend
and Poise.
Tissue-Based Products include facial and bathroom tissue, paper towels, paper
napkins and wipers for household and away-from-home use; pulp; and related
products. Products in this business segment are sold under the Kleenex, Scott,
Kleenex Cottonelle, Kleenex Viva, Kimwipes, Wypall and other brand names.
Products in the Newsprint, Paper and Other segment include printing papers,
premium business and correspondence papers, specialty papers, technical papers,
and related products; and other products and services. Prior to March 1997, this
segment also included newsprint.
Kimberly-Clark was incorporated in Delaware in 1928 as the successor to a
business established in 1872. Our principal executive offices are located at 351
Phelps Drive, Irving, Texas 75038 and our telephone number is (972) 281-1200.
RATIO OF EARNINGS TO FIXED CHARGES
Our ratio of earnings to fixed charges for the years ended December 31, 1997,
1996, 1995, 1994 and 1993 was 6.39, 9.17, 1.55, 4.51 and 2.64, respectively. The
ratio includes a pretax restructuring charge of $701.2 million in 1997, $1,440.0
million in 1995 and $378.9 million in 1993. Excluding this charge, the ratio was
9.32 in 1997, 6.20 in 1995 and 3.77 in 1993.
Our ratio of earnings to fixed charges for the nine months ended September 30,
1998 and 1997 was 7.76 and 9.40, respectively. The ratio at September 30, 1998
includes a pretax restructuring charge of $58.2 million and a pretax write-off
of intangible and other assets of $95.6 million. Excluding these charges, the
ratio was 8.52.
USE OF PROCEEDS
We intend to use the net proceeds from the sale of the Debt Securities for
general corporate purposes. These purposes may include:
- reduction of our existing indebtedness;
- working capital;
- capital expenditures;
- investments in subsidiaries and equity companies;
- share repurchases; and
- future acquisitions.
Pending use for these purposes, we will invest the proceeds in short-term
securities.
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DESCRIPTION OF DEBT SECURITIES
The following description of the debt securities offered hereby (the "Debt
Securities") sets forth certain general terms and provisions of the Debt
Securities to which any supplement to this Prospectus (a "Prospectus
Supplement") may relate. The specific terms of the Debt Securities and the
extent, if any, to which such general provisions may not apply will be described
in the Prospectus Supplement.
The Debt Securities are to be issued under a First Amended and Restated
Indenture dated as of March 1, 1988, as amended by the First and Second
Supplemental Indentures dated as of November 6, 1992 and May 25, 1994,
respectively (collectively, the "Indenture"), with The First National Bank of
Chicago, as successor trustee under an Instrument of Resignation, Appointment
and Acceptance dated as of December 12, 1995 (the "Trustee"). Selected
provisions of the Debt Securities and the Indenture are summarized below. The
summary is not complete, but the form of Indenture has been filed as an exhibit
to the registration statement and you should read the Indenture for provisions
that may be important to you. For information on locating the Indenture, read
"Where to Find More Information" in this Prospectus.
Unless otherwise defined in this Prospectus, all capitalized terms have the
meanings specified in the Indenture.
GENERAL
The Debt Securities will be limited to $700,000,000 of proceeds. They will be
unsecured obligations and will rank on a parity with all of our other currently
outstanding unsecured and unsubordinated debt. The Indenture does not limit the
aggregate principal amount of debt securities issued under it and provides that
they may be issued from time to time in one or more series.
PROSPECTUS SUPPLEMENT
You should refer to the Prospectus Supplement for the following information
relating to the Debt Securities:
- their title;
- any limits on their aggregate principal amount;
- the initial offering price(s) at which they will be sold;
- the date(s) on which the principal will be payable;
- the rate(s) (which may be fixed or variable) at which they will bear
interest, if any, and the date(s) from which the interest, if any, will
accrue;
- the date(s) on which the interest, if any, will be payable and any record
dates for the payments due;
- any sinking fund or similar provisions, whether mandatory or at your
option, along with the periods, prices and terms of redemption, purchase
or repayment;
- any provisions for redemption or purchase, at our option or otherwise,
including the periods, prices and terms of redemption or purchase;
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- the amount or percentage payable if their maturity is accelerated, if
other than the principal amount;
- the currency of our payments of principal, premium, if any, and interest,
and any index used to determine the amounts of such payments;
- any defeasance provisions with respect to the amount we owe, restrictive
covenants and/or Events of Default; and
- any other terms in addition to those described in this Prospectus.
We may issue Debt Securities as Original Issue Discount Securities to be offered
and sold at a substantial discount from the principal amount. Special Federal
income tax, accounting and other considerations relating to any such Original
Issue Discount Securities will be described in the Prospectus Supplement.
Unless otherwise indicated in the Prospectus Supplement, the covenants contained
in the Indenture and the Debt Securities would not necessarily protect you in
the event of a highly leveraged or other transaction involving the Corporation.
PAYMENTS, TRANSFER AND EXCHANGE
Unless otherwise indicated in the Prospectus Supplement, we will make payments
of principal, premium, if any, and interest on the Debt Securities, and you may
exchange and transfer Debt Securities, at the office of the Trustee at One First
National Plaza, Suite 0126, Chicago, Illinois 60670-0126, or at the office of
First Chicago Trust Company of New York, 14 Wall Street, 8th Floor -- Window 2,
New York, New York 10005. We may, however, elect to pay any interest by check
mailed by first class mail to the address of the Person entitled thereto as it
appears in the Security Register.
We will not charge for any transfer or exchange of Debt Securities, but we may
require payment of a sum to cover any related tax or other governmental charge.
FORM OF DEBT SECURITIES
The Debt Securities will be issued in registered form. We will issue Debt
Securities only in denominations of $1,000 or integral multiples of that amount,
unless the Prospectus Supplement states otherwise.
Unless the Prospectus Supplement otherwise provides, Debt Securities will be
issued as one or more global securities. This means that we will not issue
certificates to each holder. We generally will issue global securities in the
total principal amount of the Debt Securities distributed in that series.
GLOBAL SECURITIES
IN GENERAL. Debt Securities in global form will be deposited with or on behalf
of a depositary. Global securities are represented by one or more global
certificates for the series registered in the name of the depositary or its
nominee. Debt Securities in global form may not be transferred except as a whole
among the depositary, a nominee of or a successor to the depositary and any
nominee of that successor. Unless otherwise identified
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in the Prospectus Supplement, the depositary will be The Depository Trust
Company ("DTC").
NO DEPOSITARY OR GLOBAL SECURITIES. If a depositary for a series of Debt
Securities is unwilling or unable to continue as depositary, and a successor is
not appointed by us within 90 days, we will issue that series of Debt Securities
in registered definitive form in exchange for the global security or securities
of that series. We also may determine at any time in our discretion not to use
global securities for any series. In that event, we will issue Debt Securities
in registered definitive form.
OWNERSHIP OF THE GLOBAL SECURITIES; BENEFICIAL OWNERSHIP. So long as the
depositary or its nominee is the registered owner of a global security, that
entity will be the sole holder of the Debt Securities represented by that
instrument. The Trustee and we are only required to treat the depositary or its
nominee as the legal owner of those securities for all purposes under the
Indenture.
A purchaser of Debt Securities represented by a global security (a "beneficial
owner") will not be entitled to receive physical delivery of certificated
securities, will not be considered the holder of those securities for any
purpose under the Indenture, and will not be able to transfer or exchange the
global security, unless the Prospectus Supplement provides to the contrary. As a
result, each beneficial owner must rely on the procedures of the depositary to
exercise any rights of a holder under the Indenture. In addition, if the
beneficial owner is not a direct or indirect participant in the depositary (each
a "participant") the beneficial owner must rely on the procedures of the
participant through which it owns its beneficial interest in the global
security.
The laws of some jurisdictions require that certain purchasers of securities
take physical delivery of the securities in certificated form. Those laws and
the above conditions may impair the ability to transfer beneficial interests in
the global securities.
THE DEPOSITORY TRUST COMPANY
The following is based on information furnished by DTC and applies to the extent
it is the depositary, unless otherwise stated in the Prospectus Supplement:
REGISTERED OWNER. The Debt Securities will be issued as fully registered
securities in the name of Cede & Co. (DTC's partnership nominee). No single
global security will be issued in a principal amount of more than $200 million.
The Trustee will deposit the global securities with the depositary. The deposit
of the global securities with DTC and their registration in the name of Cede &
Co. will not change the beneficial ownership of the securities.
DTC ORGANIZATION. DTC is a limited-purpose trust company organized under the New
York Banking Law, a "banking organization" within the meaning of that law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code and a "clearing agency"
registered under the provisions of Section 17A of the Securities Exchange Act of
1934.
DTC is owned by a number of its direct participants and by the New York Stock
Exchange, Inc., the American Stock Exchange, Inc. and the National Association
of Securities Dealers, Inc. Direct participants include securities brokers and
dealers, banks, trust companies, clearing corporations and certain other
organizations who directly
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participate in DTC (each a "direct participant"). Other entities ("indirect
participants") may access DTC's system by clearing transactions through or
maintaining a custodial relationship with direct participants, either directly
or indirectly. The rules applicable to DTC and its participants are on file with
the SEC.
DTC ACTIVITIES. DTC holds securities that its participants deposit with it. DTC
also facilitates the settlement among participants of securities transactions,
such as transfers and pledges, in deposited securities through electronic
computerized book-entry changes in participants' accounts. Doing so eliminates
the need for physical movement of securities certificates.
PARTICIPANTS' RECORDS. Except as otherwise provided in the Prospectus
Supplement, purchases of the Debt Securities must be made by or thorough direct
participants, which will receive a credit for the securities on DTC's records.
The beneficial owner's ownership interest is in turn to be recorded on the
direct and indirect participants' records. Beneficial owners will not receive
written confirmations from DTC of their purchase, but they are expected to
receive them, along with periodic statements of their holdings, from the direct
or indirect participants through whom they entered into the transaction.
Transfers of interests in the global securities will be made on the books of the
participants on behalf of the beneficial owners. Certificates representing the
interest of the beneficial owners in the Debt Securities will not be issued
unless the use of global securities is suspended, as provided above.
DTC has no knowledge of the actual beneficial owners of the global securities.
Its records only reflect the identity of the direct participants as owners of
the securities. Those participants may or may not be the beneficial owners.
Participants are responsible for keeping account of their holdings on behalf of
their customers.
NOTICES AMONG DTC, PARTICIPANTS AND BENEFICIAL OWNERS. Notices and other
communications by DTC, its participants and the beneficial owners will be
governed by arrangements among them, subject to any legal requirements in
effect.
VOTING PROCEDURES. Neither DTC nor Cede & Co. will give consents for or vote the
global securities. DTC generally mails an omnibus proxy to us just after the
applicable record date. That proxy assigns Cede & Co.'s consenting or voting
rights to the direct participants to whose accounts the securities are credited
at that time
PAYMENTS. Principal and interest payments made by us will be delivered to DTC.
DTC's practice is to credit direct participants' accounts on the applicable
payment date unless it has reason to believe it will not receive payment on that
date. Payments by participants to beneficial owners will be governed by standing
instructions and customary practices, as is the case with securities held for
customers in bearer form or registered in "street name." Those payments will be
the responsibility of that participant, not DTC, the Trustee or us, subject to
any legal requirements in effect at that time.
We are responsible for payment of principal, interest and premium, if any, to
the Trustee, which is responsible for making those payments to DTC. DTC is
responsible for disbursing those payments to direct participants. The
participants are responsible for disbursing payments to the beneficial owners.
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RESTRICTIVE COVENANTS
CERTAIN DEFINITIONS
- "Attributable Debt" in respect of a Sale and Lease-Back Transaction means
the present value of the obligation of the lessee for rental payments
(excluding any amounts required to be paid by the lessee on account of,
or contingent upon the amount of sales, maintenance and repairs,
insurance, taxes, assessments, water rates or similar charges) during the
remaining term of the lease (including any actual or potential extension
period).
- "Consolidated Net Tangible Assets" means the total amount of assets (less
applicable reserves) after deducting (a) all current liabilities
(excluding any which are extendible or renewable into, and current
maturities of, long-term debt), and (b) all goodwill, trade names,
trademarks, patents, unamortized debt discount and expense and other like
intangible assets, except that such assets shall include an amount equal
to the Attributable Debt in respect of any Sale and Lease-Back
Transaction not capitalized on our most recent audited year-end balance
sheet.
- "Principal Property" means any mill, manufacturing plant or facility, or
Timberland located within the United States of America, having a gross
book value in excess of 1% of Consolidated Net Tangible Assets and owned
by us or any Restricted Subsidiary, in each case other than (a) any such
mill, plant, facility or Timberland which, in the opinion of our Board of
Directors, is not of material importance to our total business, (b) any
portion of such a mill, plant, facility or Timberland similarly found not
to be of material importance to its use or operation, or (c) any mineral
rights and any plant or facility used for the extraction or processing
thereof.
- "Restricted Subsidiary" means any Subsidiary (a) substantially all of the
property of which is located, or substantially all of the business of
which is carried on, within the United States of America, and (b) which
owns a Principal Property; provided however that any Subsidiary which is
principally engaged in certain financing or leasing activities shall not
be a Restricted Subsidiary.
- "Sale and Lease-Back Transaction" means any arrangement whereby we or any
Restricted Subsidiary lease a Principal Property from any Person (except
for temporary leases of not more than three years and except for leases
between us and any Restricted Subsidiary, or between Restricted
Subsidiaries), which Principal Property has been or is to be sold or
transferred by us or such Restricted Subsidiary to such Person with the
intention of taking back a lease of such property.
- "Subsidiary" means any corporation more than 50% of the outstanding
voting stock of which is owned by us and/or one or more of our other
Subsidiaries.
- "Timberland" means any real property owned by us or any Restricted
Subsidiary which contains standing timber which is or is expected to be
of a commercial quantity and of merchantable quality, except any such
real property which is designated by our Board of Directors as being held
primarily for development or sale.
LIENS. Section 1004 of the Indenture provides that we will not, and will not
permit any Restricted Subsidiary to, issue, assume or guarantee any debt secured
by a mortgage, security interest, pledge or lien (hereafter called "mortgage")
of or upon any Principal Property, or any shares of capital stock or debt of any
Restricted Subsidiary, without also
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providing that the Debt Securities shall be secured by such mortgage equally and
ratably with or prior to such debt. This restriction, shall not apply to:
- mortgages of or upon any property acquired, constructed or improved by,
or of or upon any shares of capital stock or debt acquired by, us or any
Restricted Subsidiary after the date of the Indenture to secure debt
incurred for the purpose of financing all or any part of the purchase
price of any property, shares of capital stock or debt or of the cost of
any construction or improvements on such property, which debt is incurred
prior to or within 360 days after such acquisition, completion of such
construction or the commencement of the commercial operation of such
property;
- mortgages of or upon any property, shares of capital stock or debt
existing at the time of acquisition thereof by us or any Restricted
Subsidiary;
- mortgages of or upon property of a corporation existing at the time such
corporation is merged with or into or consolidated with us or any
Restricted Subsidiary or at the time of a sale or transfer of all or
substantially all of the properties of such corporation to us or any
Restricted Subsidiary;
- mortgages of or upon any property of, or shares of capital stock or debt
of, any corporation existing at the time such corporation becomes a
Restricted Subsidiary;
- mortgages to secure debt of any Restricted Subsidiary to the Corporation
or another Restricted Subsidiary or to secure debt of the Corporation to
any Restricted Subsidiary;
- mortgages in favor of governmental bodies to secure advance or progress
payments pursuant to any contract or statute or to secure debt incurred
or guaranteed to finance or refinance all or any part of the purchase
price of the property, shares of capital stock or debt subject to, or the
cost of constructing or improving the property subject to, such
mortgages; and
- extensions, renewals or replacements of any mortgage existing on the date
of the Indenture or any mortgage referred to above.
Furthermore, we or any Restricted Subsidiary may, without equally and ratably
securing the Debt Securities, issue, assume or guarantee debt secured by a
mortgage not excepted above, if the aggregate amount of such debt, together with
(a) all other debt secured by mortgages not so excepted, and (b) the
Attributable Debt in respect of Sale and Lease-Back Transactions (other than
Sale and Lease-Back Transactions (i) in respect of which amounts equal to the
Attributable Debt relating to the transactions shall have been applied, within
360 days after the effective date of the arrangement, to the optional prepayment
or retirement of long-term debt, and (ii) in which the property involved would
have been permitted to be mortgaged under the exceptions above), does not at the
time exceed 5% of Consolidated Net Tangible Assets.
The sale, mortgage or other transfer of timber in connection with an arrangement
under which we or any Restricted Subsidiary is obligated to cut such timber in
order to provide the transferee with a specified amount of money does not create
debt secured by a mortgage or constitute a mortgage securing debt or a Sale and
Lease-Back Transaction.
SALES AND LEASE-BACK TRANSACTIONS. Section 1005 of the Indenture provides that
neither we nor any Restricted Subsidiary may engage in Sale and Lease-Back
Transactions with
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respect to any Principal Property unless (i) we or the Restricted Subsidiary are
able, without equally and ratably securing the Debt Securities, to incur debt
secured by a mortgage on such property pursuant to the exceptions described in
"LIENS" above, or (ii) we or the Restricted Subsidiary are able, without equally
and ratably securing the Debt Securities, to incur debt secured by a mortgage on
such property in an amount at least equal to the Attributable Debt in respect of
the Sale and Lease-Back Transaction, or (iii) we shall apply, within 360 days
after the effective date of the arrangement, an amount equal to the Attributable
Debt in respect of the transaction to the optional prepayment or retirement of
long-term debt of the Corporation or any Restricted Subsidiary.
CONSOLIDATIONS, MERGERS AND SALES OF ASSETS
The Indenture provides that we may consolidate with or merge into, and sell or
transfer all or substantially all of our property and assets to, any other
corporation; provided, however, that the corporation formed by such
consolidation or into which we merge, or the corporation which acquires all or
substantially all of our property and assets, shall assume our obligations to:
- pay the principal of, and premium, if any, and interest on, all the Debt
Securities, and
- perform and observe all the terms, covenants and conditions of the
Indenture.
If, upon any such consolidation or merger, or upon any such sale or transfer,
any Principal Property or any shares of capital stock or debt of any Restricted
Subsidiary, owned immediately prior thereto, would become subject to any
mortgage securing any debt of, or guaranteed by, such other corporation (other
than any mortgage permitted as described in the first two paragraphs under
"LIENS" above), we will secure, prior to such consolidation, merger, sale or
transfer, the payment of the principal of, and premium, if any, and interest on
the Debt Securities equally and ratably with or prior to the debt secured by
such mortgage.
EVENTS OF DEFAULT
The following are Events of Default under the Indenture with respect to Debt
Securities of any series:
- our failure to pay principal or premium, if any, on any Debt Security of
that series when due;
- our failure to pay interest on any Debt Security of that series when due,
continued for 30 days;
- our failure to make any sinking fund payment, when due, in respect of any
Debt Security of that series;
- our failure to perform any other covenant in the Indenture (other than a
covenant included in the Indenture solely for the benefit of a series of
Debt Securities other than that series), continued for 90 days after
written notice as provided in the Indenture;
- certain events in bankruptcy, insolvency or reorganization; and
- any other Event of Default provided with respect to Debt Securities of
that series.
10
<PAGE> 12
An Event of Default with respect to a particular series of Debt Securities
(except as to matters involving bankruptcy, insolvency or reorganization) does
not necessarily constitute an Event of Default with respect to any other series
of Debt Securities.
If an Event of Default occurs and continues, the Trustee or the Holders of at
least 25% of the Outstanding Debt Securities of that series may declare those
Debt Securities to be due and payable. However, at any time after such a
declaration of acceleration has been made, but before the Stated Maturity of
such Debt Securities, the Holders of a majority of the Outstanding Debt
Securities of that series may, subject to certain conditions, rescind and annul
such acceleration if all Events of Default, other than the non-payment of
accelerated principal, with respect to such Debt Securities have been cured or
waived. You should refer to the Prospectus Supplement relating to any series of
Debt Securities which are Original Issue Discount Securities for particular
provisions relating to acceleration of a portion of the principal amount of such
Original Issue Discount Securities upon the occurrence and continuance of an
Event of Default.
Subject to the provisions of the Indenture relating to the duties of the Trustee
in case an Event of Default occurs and continues, the Trustee is not required to
exercise any of its rights or powers under the Indenture at the request or
direction of any Holder, unless one or more of them shall have offered
reasonable indemnity to the Trustee. Subject to such indemnification provisions
and certain other rights of the Trustee, the Holders of a majority of the
Outstanding Debt Securities of any series shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on the Trustee with
respect to the Debt Securities of that series.
No Holder of any Debt Security of any series will have any right to institute
any proceeding with respect to the Indenture, unless such Holder shall have
previously notified the Trustee of a continuing Event of Default with respect to
Debt Securities of that series and the Holders of at least 25% of the
Outstanding Debt Securities of that series shall have requested, and offered
reasonable indemnity to, the Trustee to institute such proceeding, and the
Trustee shall not have received from the Holders of a majority of the
Outstanding Debt Securities of that series a direction inconsistent with such
request and shall have failed to institute such proceeding within 60 days.
However, the Holder of any Debt Security will have an absolute right to receive
payment of the principal of (and premium, if any) and any interest on such Debt
Security on or after the applicable due dates and to sue for the enforcement of
any such payment.
The Indenture requires us to furnish to the Trustee annually a statement as to
the absence of certain defaults under the Indenture. The Indenture provides that
the Trustee may withhold notice to the Holders of Debt Securities of any series
of any default (except in payment of principal, premium, if any, or interest, or
in sinking fund payments) with respect to Debt Securities of such series if it
considers it in the interest of the Holders of Debt Securities of such series to
do so.
DEFEASANCE AND COVENANT DEFEASANCE
The Indenture provides that, if applicable, we will be discharged from our
obligations in respect of the Outstanding Debt Securities of any series (except
for certain obligations to register the transfer or exchange of Outstanding Debt
Securities of such series, to replace
11
<PAGE> 13
stolen, lost or mutilated Outstanding Debt Securities of such series, to
maintain paying agencies and to hold monies for payment in trust) upon the
irrevocable deposit with the Trustee, in trust, of money and/or U.S. Government
Obligations which, together with the income from those obligations, will be
sufficient to pay the principal of and premium, if any, and each installment of
interest on the Outstanding Debt Securities of such series on the Stated
Maturity or Redemption Date of such payments. Such a trust may only be
established if, among other things, (i) we have received from, or there has been
published by, the Internal Revenue Service a ruling which, in the Opinion of
Counsel, provides that Holders of the Outstanding Debt Securities of such series
will have no federal income tax consequences as a result of such deposit and
defeasance, and (ii) we have delivered to the Trustee an Opinion of Counsel to
the effect that the Outstanding Debt Securities of such series, if then listed
on any securities exchange, will not be delisted as a result of such deposit,
defeasance and discharge.
The Indenture provides that, if applicable, we need not comply with the
restrictive covenants contained in Sections 802 (Securities to be Secured in
Certain Events), 1004 (Limitations on Liens), 1005 (Limitation on Sale and
Lease-Back) and 1007 (Statement by Officers as to Default) of the Indenture, and
that such noncompliance shall not be an Event of Default under the Indenture and
the Outstanding Debt Securities of any series, upon the irrevocable deposit with
the Trustee, in trust, of money and/or U.S. Government Obligations which,
together with the income from those obligations, will be sufficient to pay the
principal of and premium, if any, and each installment of interest on the
Outstanding Debt Securities of such series on the Stated Maturity or Redemption
Date of such payments. Our obligations under the Indenture and the Outstanding
Debt Securities of such series other than with respect to the covenants referred
to above and the Events of Default other than the Event of Default referred to
above shall remain in full force and effect. Such a trust may only be
established if, among other things, we have delivered to the Trustee an Opinion
of Counsel to the effect that (i) the Holders of the Outstanding Debt Securities
of such series will have no federal income tax consequences as a result of such
deposit and defeasance, and (ii) the Outstanding Debt Securities of such series,
if then listed on any securities exchange, will not be delisted as a result of
such deposit and defeasance.
In the event we elect not to comply with the covenants described in the
preceding paragraph and the Outstanding Debt Securities of the applicable series
are declared due and payable because of the occurrence of any Event of Default
other than the Event of Default described in the preceding paragraph, although
the amount of money and U.S. Government Obligations on deposit with the Trustee
will be sufficient to pay amounts due on the Outstanding Debt Securities of such
series at the time of their Stated Maturity or Redemption Date, it may not be
sufficient to pay amounts due on the Outstanding Debt Securities of such series
at the time of the acceleration resulting from such Event of Default. However,
we will remain liable for such payments.
MODIFICATION OF THE INDENTURE AND WAIVER OF COVENANTS
We may modify and amend the Indenture with the consent of the Holders of 66 2/3%
of the Outstanding Debt Securities of each series affected by such modifications
or amendments; provided, however, that no such modification or amendment may,
without the consent of each Holder of Outstanding Debt Securities affected
thereby,
12
<PAGE> 14
- change the maturity date of the principal amount of, or any installment
of principal of or interest on, any Debt Security;
- reduce the principal amount of, or the premium, if any, or any interest
on, any Debt Security or reduce the amount of principal of an Original
Issue Discount Security that would be due and payable upon acceleration;
- change the place or currency of payment of principal of, or premium, if
any, or interest on, any Debt Security;
- impair the right to sue for payment on or with respect to any Debt
Security after the maturity date; or
- reduce the percentage of Outstanding Debt Securities of any series, the
consent of whose Holders is required for modification or amendment of the
Indenture, required to waive our compliance with certain provisions of
the Indenture or certain defaults.
The Holders of 66 2/3% of the Outstanding Debt Securities of any series may on
behalf of the Holders of all Debt Securities of that series waive, insofar as
that series is concerned, our compliance with certain restrictive provisions of
the Indenture. The Holders of a majority of the Outstanding Debt Securities of
any series may on behalf of the Holders of all Debt Securities of that series
waive any past default under the Indenture with respect to that series, except
(a) a default in the payment of the principal of, or premium, if any, or
interest on any Debt Security of that series, or (b) in respect of a provision
which under the Indenture cannot be modified or amended without the consent of
each Holder of the Outstanding Debt Securities affected.
REGARDING THE TRUSTEE
We maintain banking relationships in the ordinary course of business with The
First National Bank of Chicago, the Trustee under the Indenture, and have two
revolving credit agreements in the aggregate amount of $162.5 million with such
bank. Certain debt securities of the Corporation are currently outstanding under
the Indenture.
PLAN OF DISTRIBUTION
We may sell Debt Securities to or through underwriters or dealers, and also may
sell Debt Securities directly or indirectly to one or more other purchasers or
through agents. These underwriters may include Salomon Smith Barney Inc. and
Morgan Stanley & Co. Incorporated, or a group of underwriters represented by one
or both of such firms. These firms also may act as agents.
The distribution of the Debt Securities may be effected from time to time in one
or more transactions at a fixed price or prices, which may be changed, or at
market prices prevailing at the time of sale, at prices related to these
prevailing market prices or at negotiated prices.
In connection with the offering of Debt Securities, certain underwriters and
their affiliates may engage in transactions that stabilize, maintain or
otherwise affect the market price of the Debt Securities. These transactions may
include stabilization transactions effected in accordance with Rule 104 of
Regulation M, pursuant to which such persons may bid for or purchase Debt
Securities for the purpose of stabilizing their market price. The underwriters
13
<PAGE> 15
also may create a short position for the account of the underwriters by selling
more Debt Securities in connection with the offering than they are committed to
purchase from us, and in such case may purchase Debt Securities in the open
market following completion of the offering to cover such short position. Any of
the transactions described in this paragraph may result in the maintenance of
the price of the Debt Securities at a level above that which might otherwise
prevail in the open market. None of the transactions described in this paragraph
is required, and, if they are undertaken, they may be discontinued at any time.
In connection with the sale of Debt Securities, underwriters may receive
compensation from us or from purchasers of Debt Securities for whom they may act
as agents in the form of discounts, concessions or commissions. Underwriters may
sell Debt Securities to or through dealers, and the dealers may receive
compensation in the form of discounts, concessions or commissions from the
underwriters and/or commissions from the purchasers for whom they may act as
agents. Underwriters, dealers and agents that participate in the distribution of
Debt Securities may be deemed to be underwriters, and any discounts or
commissions received by them from us and any profit on the resale of Debt
Securities by them may be deemed to be underwriting discounts and commissions,
under the Securities Act of 1933. Any such underwriter or agent will be
identified, and any such compensation received from us will be described, in the
Prospectus Supplement.
Underwriters and agents who participate in the distribution of Debt Securities
may be entitled under agreements which may be entered into by us to
indemnification by us against certain liabilities, including liabilities under
the Securities Act of 1933, or to contribution with respect to payments which
the underwriters or agents may be required to make in respect thereof. These
underwriters and agents may be customers of, engage in transactions with, or
perform services for us in the ordinary course of business.
If so indicated in the Prospectus Supplement, we may authorize underwriters or
other persons acting as our agents to solicit offers by certain institutions to
purchase Debt Securities from us 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 such institutions must be approved by us. The obligations of any
purchaser under any such contract will be subject to the condition that the
purchase of the Debt 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 other agents will not have any responsibility in respect
of the validity or performance of such contracts.
VALIDITY OF DEBT SECURITIES
Unless otherwise indicated in the Prospectus Supplement, the validity of the
Debt Securities will be passed upon for the Corporation by O. George Everbach,
our Senior Vice President -- Law and Government Affairs, and for the
underwriters or agents by Cleary, Gottlieb, Steen & Hamilton, New York, New
York.
14
<PAGE> 16
EXPERTS
Our consolidated financial statements and related consolidated financial
statement schedules as of December 31, 1997 and 1996 and for each of the three
years in the period ended December 31, 1997, incorporated in this Prospectus by
reference to our Annual Report on Form 10-K for the year ended December 31,
1997, have been audited by Deloitte & Touche LLP, independent auditors, as
stated in their reports, which also are incorporated herein by reference, and
have been so incorporated in reliance upon the reports of such firm given upon
their authority as experts in accounting and auditing.
15
<PAGE> 17
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<S> <C>
S.E.C. Filing Fee........................................... $139,000
Trustee's Charges*.......................................... 2,000
Printing and Engraving*..................................... 40,000
Accounting Fees*............................................ 16,000
Rating Agency Fees*......................................... 80,000
Blue Sky and Legal Fees and Expenses*....................... 5,000
Miscellaneous*.............................................. 23,000
--------
$305,000
========
</TABLE>
- -------------------------
* Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Corporation's By-laws (the "By-laws") provide, among other things, that the
Corporation shall (i) indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Corporation) by reason of the
fact that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director or officer of another
corporation, or, in the case of a director or officer of the Corporation, is or
was serving as an employee or agent of a partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of
the Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful, and (ii) indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he is
or was a director or officer of the Corporation, or is or was serving at the
request of the Corporation as a director or officer of another corporation, or,
in the case of a director or officer of the Corporation, is or was serving as an
employee or agent of a partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which
the Court of Chancery or
II-1
<PAGE> 18
such other court shall deem proper. Notwithstanding the foregoing, the
Corporation is not required to indemnify any director or officer of the
Corporation in connection with a proceeding (or portion thereof) initiated by
such director or officer against the Corporation or any directors, officers or
employees thereof unless (i) the initiation of such proceeding (or portion
thereof) was authorized by the Board of Directors of the Corporation or (ii)
notwithstanding the lack of such authorization, the person seeking
indemnification is successful on the merits. The By-laws further provide that
the indemnification provided therein shall not be deemed exclusive of any other
rights to which those seeking indemnification may be entitled.
Section 145 of the General Corporation Law of the State of Delaware authorizes
indemnification by the Corporation of directors and officers under the
circumstances provided in the provisions of the By-laws described above, and
requires such indemnification for expenses actually and reasonably incurred to
the extent a director or officer is successful in the defense of any action, or
any claim, issue or matter therein.
The Corporation has purchased insurance which purports to insure the Corporation
against certain costs of indemnification which may be incurred by it pursuant to
the By-laws and to insure the directors and officers of the Corporation, and of
its subsidiary companies, against certain liabilities incurred by them in the
discharge of their functions as such directors and officers, except for
liabilities resulting from their own malfeasance.
The forms of Underwriting Agreement and Distribution Agreement filed as Exhibits
1.1 and 1.2 hereto provide for indemnification and contribution by underwriters
or agents, as the case may be, with respect to certain liabilities of directors
and officers of the Corporation and other persons, if any, who control the
Corporation.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
1.1 -- Form of Underwriting Agreement (incorporated by reference
to Exhibit 1.1 to the Registration Statement on Form S-3
filed on February 2, 1998 (Registration No. 333-45399))
1.2 -- Form of Distribution Agreement (incorporated by reference
to Exhibit 1.2 to the Registration Statement on Form S-3
filed on June 17, 1994 (Registration No. 33-54177))
4.1 -- First Amended and Restated Indenture dated as of March 1,
1998 (the "Indenture") between the Corporation and Bank
of America National Trust and Savings Association, as
successor Trustee ("BOA") (incorporated by reference to
Exhibit 4.1 to the Registration Statement on Form S-3
filed on February 2, 1998 (Registration No. 333-45399))
4.2 -- Three forms of Debt Securities (included in Exhibit 4.1
at pages A-1 through C-5) (incorporated by reference to
Exhibit 4.2 to the Registration Statement on Form S-3
filed on February 2, 1998 (Registration No. 333-45399))
</TABLE>
II-2
<PAGE> 19
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
4.3 -- First Supplemental Indenture, dated as of November 6,
1992, to the Indenture (incorporated by reference to
Exhibit 4.3 to the Registration Statement on Form S-3
filed on June 17, 1994 (Registration No. 33-54177))
4.4 -- Second Supplemental Indenture, dated as of May 25, 1994,
to the Indenture (incorporated by reference to Exhibit
4.4 to the Registration Statement on Form S-3 filed on
June 17, 1994 (Registration No. 33-54177))
4.5 -- Instrument of Resignation, Appointment and Acceptance
dated as of December 12, 1995 among the Corporation, BOA
and The First National Bank of Chicago, as successor
Trustee (incorporated by reference to Exhibit 4.5 to the
Registration Statement on Form S-3 filed on February 2,
1998 (Registration No. 333-45399))
5* -- Opinion of O. George Everbach, Senior Vice
President -- Law and Government Affairs of the
Corporation, as to the validity of the Debt Securities
12* -- Computation of Ratio of Earnings to Fixed Charges for the
five years ended December 31, 1997
23.1* -- Consent of Deloitte & Touche LLP
23.2* -- Consent of PricewaterhouseCoopers L.L.P.
23.3* -- The consent of O. George Everbach, Senior Vice
President -- Law and Government Affairs of the
Corporation, is contained in his opinion filed as Exhibit
5 to this Registration Statement
24* -- Directors' Powers of Attorney
25* -- Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of The First National
Bank of Chicago dated as of December 2, 1998
</TABLE>
- -------------------------
* Filed herewith
ITEM 17. UNDERTAKINGS.
The Corporation hereby undertakes (1) to file, during any period in which offers
or sales are being made, 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 this Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
Registration Statement; provided that any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of
II-3
<PAGE> 20
Registration Fee" table in this Registration Statement; and (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 the Registration Statement; provided, however, that paragraphs
(1)(i) and (1)(ii) do not apply if this Registration Statement is on Form S-3 or
Form S-8 and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
Corporation 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 therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; (3) to remove from registration by means of a
post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering; (4) that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the Corporation's
annual report pursuant to section 13(a) or section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to 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
therein, 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 the form of prospectus filed by the Corporation
pursuant to rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be
deemed to be part of this Registration Statement as of the time it was declared
effective; and (6) that, for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of the
Corporation pursuant to the provisions described under Item 15 above or
otherwise, the Corporation 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 Corporation of expenses incurred or paid by a director, officer or
controlling person of the Corporation in the successful defense of any action,
suit or proceeding) is asserted against the Corporation by such director,
officer or controlling person in connection with the securities being
registered, the Corporation will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-4
<PAGE> 21
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Irving, State of Texas, on December 15, 1998.
KIMBERLY-CLARK CORPORATION
By: /s/ WAYNE R. SANDERS
--------------------------------------
Wayne R. Sanders
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<C> <S> <C>
/s/ WAYNE R. SANDERS Chairman of the Board and Chief December 15, 1998
- ------------------------------------------ Executive Officer and
Wayne R. Sanders Director (principal executive
officer)
/s/ JOHN W. DONEHOWER Senior Vice President and Chief December 15, 1998
- ------------------------------------------ Financial Officer (principal
John W. Donehower financial officer)
/s/ RANDY J. VEST Vice President and Controller December 15, 1998
- ------------------------------------------ (principal accounting
Randy J. Vest officer)
</TABLE>
DIRECTORS
<TABLE>
<S> <C>
* *
- ------------------------------------------------ ------------------------------------------------
John F. Bergstrom Louis E. Levy
* *
- ------------------------------------------------ ------------------------------------------------
Pastora San Juan Cafferty Frank A. McPherson
* *
- ------------------------------------------------ ------------------------------------------------
Paul J. Collins Linda Johnson Rice
* *
- ------------------------------------------------ ------------------------------------------------
Robert W. Decherd Wolfgang R. Schmitt
* *
- ------------------------------------------------ ------------------------------------------------
William O. Fifield Randall L. Tobias
- ------------------------------------------------
Claudio X. Gonzalez
</TABLE>
December 15, 1998
*By: /s/ O. GEORGE EVERBACH
-------------------------------
O. George Everbach
Attorney-in-Fact
II-5
<PAGE> 22
EXHIBIT INDEX
The following is a list of Exhibits included as part of this Registration
Statement.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
1.1 -- Form of Underwriting Agreement (incorporated by reference
to Exhibit 1.1 to the Registration Statement on Form S-3
filed on February 2, 1998 (Registration No. 333-45399))
1.2 -- Form of Distribution Agreement (incorporated by reference
to Exhibit 1.2 to the Registration Statement on Form S-3
filed on June 17, 1994 (Registration No. 33-54177))
4.1 -- First Amended and Restated Indenture dated as of March 1,
1998 (the "Indenture") between the Corporation and Bank
of America National Trust and Savings Association, as
successor Trustee ("BOA") (incorporated by reference to
Exhibit 4.1 to the Registration Statement on Form S-3
filed on February 2, 1998 (Registration No. 333-45399))
4.2 -- Three forms of Debt Securities (included in Exhibit 4.1
at pages A-1 through C-5) (incorporated by reference to
Exhibit 4.2 to the Registration Statement on Form S-3
filed on February 2, 1998 (Registration No. 333-45399))
4.3 -- First Supplemental Indenture, dated as of November 6,
1992, to the Indenture (incorporated by reference to
Exhibit 4.3 to the Registration Statement on Form S-3
filed on June 17, 1994 (Registration No. 33-54177))
4.4 -- Second Supplemental Indenture, dated as of May 25, 1994,
to the Indenture (incorporated by reference to Exhibit
4.4 to the Registration Statement on Form S-3 filed on
June 17, 1994 (Registration No. 33-54177))
4.5 -- Instrument of Resignation, Appointment and Acceptance
dated as of December 12, 1995 among the Corporation, BOA
and The First National Bank of Chicago, as successor
Trustee (incorporated by reference to Exhibit 4.5 to the
Registration Statement on Form S-3 filed on February 2,
1998 (Registration No. 333-45399))
5* -- Opinion of O. George Everbach, Senior Vice
President -- Law and Government Affairs of the
Corporation, as to the validity of the Debt Securities
12* -- Computation of Ratio of Earnings to Fixed Charges for the
five years ended December 31, 1997
23.1* -- Consent of Deloitte & Touche LLP
23.2* -- Consent of PricewaterhouseCoopers L.L.P.
23.3* -- The consent of O. George Everbach, Senior Vice
President -- Law and Government Affairs of the
Corporation, is contained in his opinion filed as Exhibit
5 to this Registration Statement
24* -- Directors' Powers of Attorney
25* -- Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of The First National
Bank of Chicago dated as of December 2, 1998
</TABLE>
- -------------------------
* Filed herewith
<PAGE> 1
EXHIBIT 5
December 15, 1998
Kimberly-Clark Corporation
P. O. Box 619100
Dallas, Texas 75261-9100
Re: Registration Statement on Form S-3
Gentlemen:
I am Senior Vice President - Law and Government Affairs of Kimberly-Clark
Corporation (the "Corporation"), and have acted as counsel in connection with
(i) the registration statement being filed by the Corporation with the
Securities and Exchange Commission (the "Commission") with regard to the
registration under the Securities Act of 1933, as amended (the "Act"), of
$500,000,000 aggregate principal amount of debt securities of the Corporation
(the "Debt Securities"), and (ii) the First Amended and Restated Indenture dated
as of March 1, 1988, as supplemented by the First Supplemental Indenture thereto
dated as of November 6, 1992, and the Second Supplemental Indenture thereto
dated as of May 25, 1994 (the "Indenture"), between the Corporation and The
First National Bank of Chicago, as successor trustee (the "Trustee"), pursuant
to which Indenture the Debt Securities are to be issued. The registration
statement (including the exhibits thereto and all documents or portions thereof
incorporated therein by reference) is hereinafter collectively called the
"Registration Statement."
I am familiar with the proceedings to date with respect to the proposed issuance
and sale of the Debt Securities. In addition, in connection with this opinion, I
have examined an executed copy of the Registration Statement and the Indenture,
and such corporate and other documents and records, and certificates of officers
of the Corporation, as I have deemed necessary for the purposes of this opinion.
In stating my opinion I have assumed the genuineness of all signatures of, and
the authority of, persons signing any documents or records on behalf of parties
other than the Corporation, the authenticity of all documents submitted to me as
originals and the conformity to authentic original documents of all documents
submitted to me as certified or photostatic copies.
Based upon the foregoing, I am of the opinion that:
1. The Corporation has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
2. The Corporation has the corporate power to authorize and sell the Debt
Securities.
3. The Debt Securities will be legally issued and binding obligations of
the Corporation (except as may be limited by bankruptcy, insolvency,
reorganization or other laws of general applicability relating to or
affecting the enforcement of creditors' rights or by general principles
of equity) when: (i) the Registration Statement, as finally amended
(including all necessary post-effective amendments), shall have become
effective under the Act; (ii) the Corporation's Board of Directors or a
duly authorized committee or
<PAGE> 2
Kimberly-Clark Corporation
Page 2
officer thereof shall have authorized the issuance and sale of the Debt
Securities as contemplated by the Registration Statement and the
Indenture; and (iii) the Debt Securities shall have been duly executed,
authenticated and delivered to the purchasers thereof against payment
of the agreed consideration therefor.
For purposes of this opinion, I have assumed that there will be no changes in
the laws currently applicable to the Corporation and that such laws will be the
only laws applicable to the Corporation.
I express no opinion as to the application of the securities or Blue Sky laws of
the various states to the sales of the Debt Securities.
I hereby consent to the filing of this opinion as an Exhibit to the Registration
Statement and to the use of my name under the caption "Validity of Debt
Securities" in the Prospectus and the Prospectus Supplement relating to the
Registration Statement which are reviewed and approved by me prior to the
distribution of such Prospectus and Prospectus Supplement and the filing thereof
with the Commission.
Very truly yours,
O. George Everbach
OGE/DMD/js
<PAGE> 1
EXHIBIT 12
KIMBERLY-CLARK CORPORATION AND SUBSIDIARIES
Computation of Ratio of Earnings to Fixed Charges
(Dollar amounts in millions)
<TABLE>
<CAPTION>
Nine Months
Ended
September 30, Year Ended December 31
----------------- ------------------------------------------------------------
1998 1997 1997 1996 1995 1994 1993
---- ---- ------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Consolidated Companies
Income before income taxes (a) ........ $ 1,309.5 $ 1,406.5 $ 1,187.5 $ 2,002.3 $ 104.4 $ 1,147.9 $ 492.4
Interest expense ...................... 147.8 118.3 164.8 186.7 245.5 270.5 249.5
Interest factor in rent expense ....... 38.7 36.1 49.8 45.7 36.1 41.9 42.7
Amortization of capitalized interest .. 7.0 6.8 9.0 8.6 9.7 9.2 8.1
Equity Affiliates
Share of 50%-owned:
Income before income taxes ............ 34.5 43.1 51.2 49.3 40.6 48.0 35.0
Interest expense ...................... 6.4 5.4 7.1 9.5 18.5 15.3 13.7
Interest factor in rent expense ....... .5 .5 .7 .7 .8 .7 .8
Amortization of capitalized interest .. .4 .5 .6 .7 .7 .6 .6
Distributed income of less than
50%-owned ............................. 35.7 31.4 62.5 48.4 25.1 41.4 41.4
--------- --------- --------- --------- --------- --------- ---------
Earnings ................................ $ 1,580.5 $ 1,648.6 $ 1,533.2 $ 2,351.9 $ 481.4 $ 1,575.5 $ 884.2
========= ========= ========= ========= ========= ========= =========
Consolidated Companies
Interest expense ...................... $ 147.8 $ 118.3 $ 164.8 $ 186.7 $ 245.5 $ 270.5 $ 249.5
Capitalized interest .................. 10.1 15.1 17.0 13.9 8.8 20.6 28.4
Interest factor in rent expense ....... 38.7 36.1 49.8 45.7 36.1 41.9 42.7
Equity Affiliates
Share of 50%-owned:
Interest expense and capitalized
interest ............................. 6.5 5.4 7.5 9.5 18.9 15.4 13.8
Interest factor in rent expense ....... .5 .5 .7 .7 .8 .7 .8
--------- --------- --------- --------- --------- --------- ---------
Fixed charges ........................... $ 203.6 $ 175.4 $ 239.8 $ 256.5 $ 310.1 $ 349.1 $ 335.2
========== ========= ========= ========= ========= ========= =========
Ratio of earnings to fixed charges(a) 7.76 9.40 6.39 9.17 1.55 4.51 2.64
========== ========= ========= ========= ========= ========= =========
</TABLE>
Note: The Corporation has provided Midwest Express Airlines, Inc., its former
commercial airline subsidiary, with a five-year $20 million secondary revolving
credit facility for use in the event Midwest Express does not have amounts
available for borrowing under its revolving bank credit facility. No drawings
have been made on these facilities. S.D. Warren Company was sold on December
20, 1994, and is reflected as a discontinued operation in the consolidated
income statement. The Corporation is contingently liable as guarantor, or
directly liable as the original obligor, for certain debt and lease obligations
of S.D. Warren Company. The buyer provided the Corporation with a letter of
credit from a major financial institution guaranteeing repayment of these
obligations. No losses are expected from these arrangements and they
have not been included in the computation of earnings to fixed charges.
(a) The ratio of earnings to fixed charges for the years ended December 31,
1997, 1995 and 1993 include restructuring charges of $701.2 million, $1,440.00
million and $378.9 million, respectively. Excluding these charges, the ratio was
9.32 in 1997, 6.20 in 1995 and 3.77 in 1993. The ratio at September 30, 1998
includes a pretax restructuring charge of $58.2 million and a pretax write-off
of intangible and other assets of $95.6 million. Excluding these charges, the
ratio was 8.52.
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Kimberly-Clark Corporation on Form S-3 of our reports dated January 26, 1998,
appearing in and incorporated by reference in the Annual Report on Form 10-K of
Kimberly-Clark Corporation for the year ended December 31, 1997 and to the
reference to us under the heading "Experts" in the Prospectus, which is part of
this Registration Statement.
/s/ DELOITTE & TOUCHE LLP
Deloitte & Touche LLP
Dallas, Texas
December 11, 1998
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement Form S-3 and in the related Prospectus of Kimberly-Clark Corporation
of our report dated January 30, 1996, which makes reference to the Company
adopting the provisions of Statement of Financial Accounting Standards No. 121
in 1995 and that our audits did not include the 1995 provisions for
restructuring and other unusual charges which were audited by other auditors,
on our audit of the consolidated financial statements and financial statement
schedule of Scott Paper Company and subsidiaries as of December 30, 1995 and
for the year then ended, which report appears in and is incorporated by
reference to the Annual Report on Form 10-K, under the Securities Exchange Act
of 1934, of Kimberly-Clark Corporation for the year ended December 31, 1997.
/s/ PRICEWATERHOUSECOOPERS LLP
PricewaterhouseCoopers LLP
2400 Eleven Penn Center
Philadelphia, PA
December 11, 1998
<PAGE> 1
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director and/or
Officer of Kimberly-Clark Corporation, a Delaware corporation (the
"Corporation"), does hereby constitute and appoint John W. Donehower, O. George
Everbach and Randy J. Vest, and each of them, with full power to act alone, the
undersigned's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign on behalf of the
undersigned the Corporation's Registration Statement on Form S-3 under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
registration under the Securities Act of up to $500,000,000 of debt securities
of the Corporation, and to execute any and all amendments to such Registration
Statement and any additional registration statement related thereto filed
pursuant to Rule 462(b) promulgated under the Securities Act, granting unto said
attorneys-in-fact and agents, and each of them, 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 as the undersigned might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any one of them, or his substitute or their substitutes, lawfully do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 9th day of December, 1998.
/s/ John F. Bergstrom
---------------------
John F. Bergstrom
<PAGE> 2
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director and/or
Officer of Kimberly-Clark Corporation, a Delaware corporation (the
"Corporation"), does hereby constitute and appoint John W. Donehower, O. George
Everbach and Randy J. Vest, and each of them, with full power to act alone, the
undersigned's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign on behalf of the
undersigned the Corporation's Registration Statement on Form S-3 under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
registration under the Securities Act of up to $500,000,000 of debt securities
of the Corporation, and to execute any and all amendments to such Registration
Statement and any additional registration statement related thereto filed
pursuant to Rule 462(b) promulgated under the Securities Act, granting unto said
attorneys-in-fact and agents, and each of them, 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 as the undersigned might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any one of them, or his substitute or their substitutes, lawfully do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 9th day of December, 1998.
/s/ Pastora San Juan Cafferty
-----------------------------
Pastora San Juan Cafferty
<PAGE> 3
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director and/or
Officer of Kimberly-Clark Corporation, a Delaware corporation (the
"Corporation"), does hereby constitute and appoint John W. Donehower, O. George
Everbach and Randy J. Vest, and each of them, with full power to act alone, the
undersigned's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign on behalf of the
undersigned the Corporation's Registration Statement on Form S-3 under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
registration under the Securities Act of up to $500,000,000 of debt securities
of the Corporation, and to execute any and all amendments to such Registration
Statement and any additional registration statement related thereto filed
pursuant to Rule 462(b) promulgated under the Securities Act, granting unto said
attorneys-in-fact and agents, and each of them, 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 as the undersigned might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any one of them, or his substitute or their substitutes, lawfully do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 9th day of December, 1998.
/s/ Paul J. Collins
-------------------
Paul J. Collins
<PAGE> 4
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director and/or
Officer of Kimberly-Clark Corporation, a Delaware corporation (the
"Corporation"), does hereby constitute and appoint John W. Donehower, O. George
Everbach and Randy J. Vest, and each of them, with full power to act alone, the
undersigned's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign on behalf of the
undersigned the Corporation's Registration Statement on Form S-3 under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
registration under the Securities Act of up to $500,000,000 of debt securities
of the Corporation, and to execute any and all amendments to such Registration
Statement and any additional registration statement related thereto filed
pursuant to Rule 462(b) promulgated under the Securities Act, granting unto said
attorneys-in-fact and agents, and each of them, 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 as the undersigned might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any one of them, or his substitute or their substitutes, lawfully do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 9th day of December, 1998.
/s/ Robert W. Decherd
---------------------
Robert W. Decherd
<PAGE> 5
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director and/or
Officer of Kimberly-Clark Corporation, a Delaware corporation (the
"Corporation"), does hereby constitute and appoint John W. Donehower, O. George
Everbach and Randy J. Vest, and each of them, with full power to act alone, the
undersigned's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign on behalf of the
undersigned the Corporation's Registration Statement on Form S-3 under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
registration under the Securities Act of up to $500,000,000 of debt securities
of the Corporation, and to execute any and all amendments to such Registration
Statement and any additional registration statement related thereto filed
pursuant to Rule 462(b) promulgated under the Securities Act, granting unto said
attorneys-in-fact and agents, and each of them, 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 as the undersigned might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any one of them, or his substitute or their substitutes, lawfully do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 9th day of December, 1998.
/s/ William O. Fifield
----------------------
William O. Fifield
<PAGE> 6
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director and/or
Officer of Kimberly-Clark Corporation, a Delaware corporation (the
"Corporation"), does hereby constitute and appoint John W. Donehower, O. George
Everbach and Randy J. Vest, and each of them, with full power to act alone, the
undersigned's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign on behalf of the
undersigned the Corporation's Registration Statement on Form S-3 under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
registration under the Securities Act of up to $500,000,000 of debt securities
of the Corporation, and to execute any and all amendments to such Registration
Statement and any additional registration statement related thereto filed
pursuant to Rule 462(b) promulgated under the Securities Act, granting unto said
attorneys-in-fact and agents, and each of them, 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 as the undersigned might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any one of them, or his substitute or their substitutes, lawfully do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 9th day of December, 1998.
/s/ Louis E. Levy
-----------------
Louis E. Levy
<PAGE> 7
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director and/or
Officer of Kimberly-Clark Corporation, a Delaware corporation (the
"Corporation"), does hereby constitute and appoint John W. Donehower, O. George
Everbach and Randy J. Vest, and each of them, with full power to act alone, the
undersigned's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign on behalf of the
undersigned the Corporation's Registration Statement on Form S-3 under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
registration under the Securities Act of up to $500,000,000 of debt securities
of the Corporation, and to execute any and all amendments to such Registration
Statement and any additional registration statement related thereto filed
pursuant to Rule 462(b) promulgated under the Securities Act, granting unto said
attorneys-in-fact and agents, and each of them, 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 as the undersigned might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any one of them, or his substitute or their substitutes, lawfully do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 9th day of December, 1998.
/s/ Frank A. McPherson
----------------------
Frank A. McPherson
<PAGE> 8
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director and/or
Officer of Kimberly-Clark Corporation, a Delaware corporation (the
"Corporation"), does hereby constitute and appoint John W. Donehower, O. George
Everbach and Randy J. Vest, and each of them, with full power to act alone, the
undersigned's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign on behalf of the
undersigned the Corporation's Registration Statement on Form S-3 under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
registration under the Securities Act of up to $500,000,000 of debt securities
of the Corporation, and to execute any and all amendments to such Registration
Statement and any additional registration statement related thereto filed
pursuant to Rule 462(b) promulgated under the Securities Act, granting unto said
attorneys-in-fact and agents, and each of them, 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 as the undersigned might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any one of them, or his substitute or their substitutes, lawfully do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 9th day of December, 1998.
/s/ Linda Johnson Rice
----------------------
Linda Johnson Rice
<PAGE> 9
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director and/or
Officer of Kimberly-Clark Corporation, a Delaware corporation (the
"Corporation"), does hereby constitute and appoint John W. Donehower, O. George
Everbach and Randy J. Vest, and each of them, with full power to act alone, the
undersigned's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign on behalf of the
undersigned the Corporation's Registration Statement on Form S-3 under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
registration under the Securities Act of up to $500,000,000 of debt securities
of the Corporation, and to execute any and all amendments to such Registration
Statement and any additional registration statement related thereto filed
pursuant to Rule 462(b) promulgated under the Securities Act, granting unto said
attorneys-in-fact and agents, and each of them, 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 as the undersigned might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any one of them, or his substitute or their substitutes, lawfully do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 9th day of December, 1998.
/s/ Wayne R. Sanders
--------------------
Wayne R. Sanders
<PAGE> 10
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director and/or
Officer of Kimberly-Clark Corporation, a Delaware corporation (the
"Corporation"), does hereby constitute and appoint John W. Donehower, O. George
Everbach and Randy J. Vest, and each of them, with full power to act alone, the
undersigned's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign on behalf of the
undersigned the Corporation's Registration Statement on Form S-3 under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
registration under the Securities Act of up to $500,000,000 of debt securities
of the Corporation, and to execute any and all amendments to such Registration
Statement and any additional registration statement related thereto filed
pursuant to Rule 462(b) promulgated under the Securities Act, granting unto said
attorneys-in-fact and agents, and each of them, 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 as the undersigned might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any one of them, or his substitute or their substitutes, lawfully do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 9th day of December, 1998.
/s/ Wolfgang R. Schmitt
-----------------------
Wolfgang R. Schmitt
<PAGE> 11
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a Director and/or
Officer of Kimberly-Clark Corporation, a Delaware corporation (the
"Corporation"), does hereby constitute and appoint John W. Donehower, O. George
Everbach and Randy J. Vest, and each of them, with full power to act alone, the
undersigned's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign on behalf of the
undersigned the Corporation's Registration Statement on Form S-3 under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
registration under the Securities Act of up to $500,000,000 of debt securities
of the Corporation, and to execute any and all amendments to such Registration
Statement and any additional registration statement related thereto filed
pursuant to Rule 462(b) promulgated under the Securities Act, granting unto said
attorneys-in-fact and agents, and each of them, 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 as the undersigned might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any one of them, or his substitute or their substitutes, lawfully do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 9th day of December, 1998.
/s/ Randall L. Tobias
---------------------
Randall L. Tobias
<PAGE> 1
EXHIBIT 25
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
--------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
----------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
-----------------------------
KIMBERLY-CLARK CORPORATION
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE 39-0394230
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
P.O. BOX 619100
DALLAS, TEXAS 75261-9100
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
DEBT SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE> 2
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C., Federal Deposit Insurance
Corporation, Washington, D.C., The Board of Governors of the Federal
Reserve System, Washington D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR IS AN AFFILIATE OF THE
TRUSTEE, DESCRIBE EACH SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A PART OF THIS
STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the trustee now in
effect.*
2. A copy of the certificates of authority of the trustee to commence
business.*
3. A copy of the authorization of the trustee to exercise corporate
trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of the Act.
7. A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or examining
authority.
<PAGE> 3
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this Statement of Eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of Chicago
and the State of Illinois, on this 2nd day of December, 1998.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
By /s/ John R. Prendiville
John R. Prendiville
Vice President
* EXHIBIT 1, 2, 3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS BEARING
IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF THE FIRST NATIONAL BANK OF
CHICAGO, FILED AS EXHIBIT 25.1 TO THE REGISTRATION STATEMENT ON FORM S-3 OF
SUNAMERICA, INC., FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER
25, 1996 (REGISTRATION NO. 333-14201).
<PAGE> 4
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
December 2, 1998
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between
Kimberly-Clark Corporation and The First National Bank of Chicago, the
undersigned, in accordance with Section 321(b) of the Trust Indenture Act of
1939, as amended, hereby consents that the reports of examinations of the
undersigned, made by Federal or State authorities authorized to make such
examinations, may be furnished by such authorities to the Securities and
Exchange Commission upon its request therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ John R. Prendiville
John R. Prendiville
Vice President
<PAGE> 5
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago Call Date: 06/30/98
ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State, Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL AND STATE-CHARTERED
SAVINGS BANKS FOR JUNE 30, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
<TABLE>
<CAPTION>
SCHEDULE RC--BALANCE SHEET
DOLLAR AMOUNTS IN
THOUSANDS
------------------
ASSETS
<S> <C> <C> <C>
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCFD
a. Noninterest-bearing balances and currency and coin(1)..................... 0081 4,490,272 1.a
b. Interest-bearing balances(2).............................................. 0071 5,586,990 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)................. 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D).............. 1773 8,974,952 2.b
3. Federal funds sold and securities purchased under agreements to
resell....................................................................... 1350 5,558,583 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RCFD
RC-C)..................................................................... 2122 28,257,868 4.a
b. LESS: Allowance for loan and lease losses................................. 3123 413,742 4.b
c. LESS: Allocated transfer risk reserve..................................... 3128 0 4.c
d. Loans and leases, net of unearned income, allowance, and RCFD
reserve (item 4.a minus 4.b and 4.c)...................................... 2125 27,844,126 4.d
5. Trading assets (from Schedule RD-D).......................................... 3545 6,073,169 5.
6. Premises and fixed assets (including capitalized leases)..................... 2145 721,430 6.
7. Other real estate owned (from Schedule RC-M)................................. 2150 6,827 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)............................................... 2130 184,515 8.
9. Customers' liability to this bank on acceptances outstanding................. 2155 310,026 9.
10. Intangible assets (from Schedule RC-M)....................................... 2143 302,859 10.
11. Other assets (from Schedule RC-F)............................................ 2160 2,137,491 11.
12. Total assets (sum of items 1 through 11)..................................... 2170 62,191,240 12.
</TABLE>
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE> 6
Legal Title of Bank: The First National Bank of Chicago Call Date: 06/30/98
ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State, Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
<TABLE>
<CAPTION>
SCHEDULE RC--CONTINUED
DOLLAR AMOUNTS IN
THOUSANDS
-----------------
LIABILITIES
<S> <C> <C> <C>
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
from Schedule RC-E, part 1)................................................. 2200 21,810,607 13.a
(1) Noninterest-bearing(1).................................................. 6631 9,864,956 13.a1
(2) Interest-bearing........................................................ 6636 11,945,651 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and RCFN
IBFs (from Schedule RC-E, part II).......................................... 2200 15,794,963 13.b
(1) Noninterest bearing..................................................... 6631 482,528 13.b1
(2) Interest-bearing........................................................ 6636 15,312,435 13.b2
14. Federal funds purchased and securities sold under agreements to repurchase: RCFD 2800 3.858,711 14
15. a. Demand notes issued to the U.S. Treasury.................................... RCON 2840 1,444,748 15.a
b. Trading Liabilities(from Schedule RC-D)..................................... RCFD 3548 5,661,633 15.b
16. Other borrowed money: RCFD
a. With original maturity of one year or less.................................. 2332 4,356,061 16.a
b. With original maturity of more than one year............................... A547 385,550 16.b
c. With original maturity of more than three years ............................ A548 320,386 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding........................ 2920 310,026 18.
19. Subordinated notes and debentures.............................................. 3200 2,200,000 19.
20. Other liabilities (from Schedule RC-G)......................................... 2930 1,176,564 20.
21. Total liabilities (sum of items 13 through 20)................................. 2948 57,319,249 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus.................................. 3838 0 23.
24. Common stock................................................................... 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock)....................... 3839 3,188,187 25.
26. a. Undivided profits and capital reserves...................................... 3632 1,467,324 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities.................................................................. 8434 18,040 26.b
27. Cumulative foreign currency translation adjustments............................ 3284 (2,418) 27.
28. Total equity capital (sum of items 23 through 27).............................. 3210 4,871,991 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)......................................... 3300 62,191,240 29.
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
<TABLE>
<S> <C>
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed for
the bank by independent external Number auditors as of any date during 1996
RCFD 6724 .
1 = Independent audit of the bank conducted in accordance 4 = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by
submits a report on the consolidated holding company external auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation
work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
</TABLE>
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
