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As filed with the Securities and Exchange Commission on January 6, 2000
Registration No. 333-____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
___________
CORDANT TECHNOLOGIES INC.
(Exact name of Registrant as specified in its charter)
Delaware 26-2678716
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
15 W. South Temple, Suite 1600
Salt Lake City, Utah 84101-1532
(801) 933-4000
(Address and telephone number of
Registrant's principal executive offices)
__________________
Richard L. Corbin
Executive Vice President and Chief Financial Officer
Cordant Technologies Inc.
15 W. South Temple, Suite 1600
Salt Lake City, Utah 84101-1532
(801) 933-4000
(Name, address, including ZIP code, and telephone number,
including area code, of agent for service)
___________
Copies to:
Scott R. Haber
Tracy K. Edmonson
Latham & Watkins
505 Montgomery Street, Suite 1900
San Francisco, California 94111
(415) 391-0600
___________
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement, as determined
by the Registrant.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box.[_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box.[X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
___________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================================================
Title of Each Class of Proposed Maximum Amount of
Securities to be Registered Aggregate Offering Registration
Price(1) (2) Fee (3)
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Debt securities.............................................................
Equity warrants.............................................................
Preferred stock, $1.00 par value............................................
Common stock, $1.00 par value(4)............................................
Units consisting of one or more of the foregoing............................
Total....................................................................... $ 650,000,000 $ 139,920
===================================================================================================================================
</TABLE>
(1) Estimated solely for purposes of calculating the registration fee, which is
calculated in accordance with Rule 457(o).
(2) Not specified as to each class of securities to be registered hereunder
pursuant to General Instruction II(D) to Form S-3 under the Securities Act
of 1933.
(3) Pursuant to Rule 429(b) the registration fee hereunder is offset by the fee
of $31,680 previously paid in connection with the registration of
$120,000,000 in securities on registration statement no. 333-01753.
(4) Each share of common stock includes one preferred share purchase right under
the Rights Agreement dated as of May 22, 1997, as amended, between the
registrant and First Chicago Trust Company of New York.
___________
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.
Pursuant to Rule 429 under the Securities Act of 1933, the prospectus included
in this registration statement is a combined prospectus which relates to
registration statement no. 333-01753, as amended, previously filed by the
registrant on Form S-3. This registration statement also constitutes post-
effective amendment no. 1 with respect to registration statement no. 333-01753,
as amended, pursuant to which $120,000,000 in securities remain to be issued.
<PAGE>
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN
OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED JANUARY 6, 2000
CORDANT TECHNOLOGIES INC.
Debt Securities
Warrants to Purchase Equity Securities
Common Stock
Preferred Stock
___________
We may from time to time sell up to $650,000,000 in the
aggregate of:
. debt securities, in one or more series, which may consist of
notes, debentures or other types of debt;
. warrants to purchase equity securities;
. shares of our preferred stock, par value $1.00 per share, in one
or more series; and
. shares of our common stock, par value $1.00 per share.
We will provide the specific terms of these securities in
supplements to this prospectus. You should read this prospectus and any
prospectus supplement carefully before you invest.
Our common stock is traded on The New York Stock Exchange under
the symbol "CDD."
__________________
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE
SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR
DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
We will sell these securities directly to our stockholders or
to purchasers or through agents on our behalf or through underwriters or dealers
as designated from time to time. If any agents or underwriters are involved in
the sale of any of these securities, the applicable prospectus supplement will
set forth the names of the agents or underwriters and any applicable fees,
commissions or discounts.
This prospectus may not be used to consummate sales of
securities unless accompanied by the applicable prospectus supplement.
The date of this prospectus is ________________.
<PAGE>
We have not authorized any dealer, salesperson or other to give
any information or to make any representation other than those contained or
incorporated by reference in this prospectus and the accompanying prospectus
supplement. You must not rely upon any information or representation not
contained or incorporated by reference in this prospectus or the accompanying
prospectus supplement as if we had authorized it. This prospectus and the
accompanying prospectus supplement do not constitute an offer to sell or the
solicitation of an offer to buy any securities other than the registered
securities to which they relate, nor do this prospectus and the accompanying
prospectus supplement constitute an offer to sell or the solicitation of an
offer to buy securities in any jurisdiction to any person to whom it is unlawful
to make such offer or solicitation in such jurisdiction. You should not assume
that the information contained in this prospectus and the prospectus supplement
is correct on any date after their respective dates, even though this prospectus
or a prospectus supplement is delivered or securities are sold on a later date.
In connection with this offering, the underwriters may over-
allot or effect transactions which stabilize or maintain the market price of the
securities at levels above those which might otherwise prevail in the open
market. This stabilizing, if commenced, may be discontinued at any time.
________________
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
About This Prospectus....................................... 3
Where You Can Find More Information......................... 4
Special Note Regarding Forward-Looking Statements........... 5
The Company................................................. 5
Use of Proceeds............................................. 6
Ratios of Earnings to Fixed Charges......................... 6
General Description of Securities........................... 7
Description of Debt Securities.............................. 7
Description of Warrants..................................... 16
Description of Preferred Stock.............................. 17
Plan of Distribution........................................ 20
Legal Matters............................................... 20
Experts..................................................... 21
</TABLE>
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ABOUT THIS PROSPECTUS
This prospectus is a part of registration statement that we
filed with the Securities and Exchange Commission using a "shelf" registration
process. Under this shelf registration process, we may sell any combination of
the securities described in this prospectus in one or more offerings up to a
total dollar amount of $650,000,000. This prospectus provides you with a general
description of the securities we may offer. Each time we offer to sell
securities, we will provide a prospectus supplement that will contain specific
information about the terms of that offering. The prospectus supplement may also
add, update or change information contained in this prospectus together with
additional information described under the next heading "Where You Can Find More
Information."
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WHERE YOU CAN FIND MORE INFORMATION
We file annual and quarterly and special reports, proxy
statements and other information with the Securities and Exchange Commission.
You can inspect and copy these reports, proxy statements and other information
at:
. the public reference facilities maintained by the SEC at Room
1024, 450 Fifth Street, N.W., Judiciary Plaza, Washington, D.C.
20549; and
. the regional offices of the SEC located at:
Midwest Regional Office, Citicorp Center, Suite 1400, 14th Floor,
500 West Madison Street, Chicago, Illinois 60661-2511; and
Northeast Regional Office, Suite 1300, 13th Floor, 7 World Trade
Center, New York, New York 10048.
You can also obtain copies of these materials from the public
reference section of the SEC at 450 Fifth Street, N.W., Judiciary Plaza,
Washington, D.C. 20549, at prescribed rates. You can obtain information on the
operation of the public reference room by calling the SEC at 1-800-SEC-0330. The
SEC also maintains a web site, http://www.sec.gov, that makes available reports,
proxy statements and other information regarding registrants that file
electronically with it. You can also inspect reports and other information we
file at the office of the New York Stock Exchange, Inc. 20 Broad Street, New
York, New York 10005.
The SEC allows us to "incorporate by reference" the information
we file with it, which means that we can disclose important information to you
by referring you to those documents. The information incorporated by reference
is an important part of this prospectus. Any statement contained in a document
incorporated by reference in this prospectus is automatically updated and
superseded if information contained in this prospectus, or information that we
later file with the SEC, modifies or replaces this information. We incorporate
by reference the following documents filed by us with the SEC:
. Annual Report on Form 10-K for the year ended December 31, 1998
(including information specifically incorporated by reference
into our Form 10-K from our Proxy Statement for our 1998 Annual
Meeting of Stockholders);
. Quarterly Report on Form 10-Q for the period ended March 31,
1999;
. Quarterly Report on Form 10-Q for the period ended June 30, 1999,
as amended;
. Quarterly Report on Form 10-Q for the period ended September 30,
1999, as amended;
. Current Report on Form 8-K filed with the SEC on June 28, 1999;
. Current Report on Form 8-K filed with the SEC on September 22,
1999;
. Current Report on Form 8-K filed with the SEC on November 12,
1999;
. the description of the common stock contained in our
Registration Statement on Form 8-A filed on July 3, 1989;
. the description of the preferred share purchase rights contained
in our registration statement on Form 8-A filed on May 28, 1997;
and
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. all other documents subsequently filed by us pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934
after the date of this prospectus and before the termination of
the offering, which shall be deemed to be a part hereof from the
date of filing of such documents.
To receive a free copy of any of the documents incorporated by
reference in this prospectus, other than exhibits, unless they are specifically
incorporated by reference in those documents, call or write to the Corporate
Secretary, Cordant Technologies Inc., 15 W. South Temple, Suite 1600, Salt Lake
City, Utah 84101-1532; telephone (801) 933-4000.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus includes or incorporates by reference forward-
looking statements within the meaning of Section 27A of the Securities Act of
1933 and Section 21E of the Securities Exchange Act of 1934. Forward-looking
statements, which are based on assumptions and describe our future plans,
strategies and expectations, are generally identifiable by the use of the words
"anticipate," "believe," "estimate," "expect," "intend," "project," or similar
expressions. These forward-looking statements are subject to risks,
uncertainties and assumptions about us. Important factors that could cause
actual results to differ materially from the forward-looking statements we make
in this prospectus are set forth in the documents incorporated by reference in
this prospectus. If one or more of these risks or uncertainties materialize, or
if any underlying assumptions prove incorrect, our actual results, performance
or achievements may vary materially from any future results, performance or
achievements expressed or implied by these forward-looking statements. All
forward-looking statements attributable to us or persons acting on our behalf
are expressly qualified in their entirety by the cautionary statements in this
paragraph. We undertake no obligation to publicly update or revise any forward-
looking statements to reflect future events or developments.
THE COMPANY
We are a leading producer of high technology solid rocket
motors for space, defense and commercial launch applications and a major
supplier of precision fastening systems for aerospace and industrial markets
worldwide. Our 84.6 percent owned subsidiary, Howmet International Inc.
("Howmet") is a leading manufacturer of investment cast turbine engine
components for jet aircraft and industrial gas power generation markets, as well
as a leading producer of aluminum investment castings for the commercial
aerospace and defense electronics industries.
We have agreed not to acquire shares of Howmet common stock
from the public if less than 14 percent of the Howmet common stock would be held
by the public following such acquisition unless such acquisition is made in
connection with a tender offer for all the shares or a merger or other business
combination where all the publicly held shares are treated equally. On November
12, 1999, we announced that we had made a proposal to the Howmet board of
directors to acquire all of the outstanding shares of Howmet not currently owned
by us.
Our principal offices are located at 15 W. South Temple, Suite
1600, Salt Lake City, Utah 84101-1532
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USE OF PROCEEDS
Unless otherwise indicated in the applicable prospectus
supplement, we anticipate that any net proceeds would be used for general
corporate purposes, which may include but are not limited to the repayment or
refinancing of our indebtedness (including indebtedness incurred in connection
with our acquisition of shares of Howmet common stock), working capital, capital
expenditures and acquisitions. When a particular series of securities is
offered, the prospectus supplement relating thereto will set forth our intended
use for the net proceeds we receive from the sale of the securities. Pending the
application of the net proceeds, we expect to invest the proceeds in short-term,
interest-bearing instruments or other investment-grade securities.
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth our ratio of earnings to fixed
charges for the periods indicated.
<TABLE>
<CAPTION>
Year Ended December 31,
------------------------------------------
1998 1997 1996 1995 1994
----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges 8.97 12.57 9.73 11.21 6.70
and ratio of earnings to fixed
charges and preferred stock
dividends............................
</TABLE>
For the purpose of calculating the ratio of earnings to fixed
charges and the ratio of earnings to fixed charges and preferred stock
dividends, earnings consist of income before income taxes and fixed charges
(exclusive of preferred stock dividends). Because we did not distribute any
preferred stock dividends during fiscal years 1994-1998, the two above ratios
are identical.
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GENERAL DESCRIPTION OF SECURITIES
We, directly or through agents, dealers or underwriters
designated from time to time, may offer, issue and sell, together or separately,
up to $650,000,000 in the aggregate of:
. unsecured debt securities, in one or more series, which
may be either senior debt securities, senior subordinated
debt securities or subordinated debt securities;
. shares of preferred stock, par value $1.00 per share, in
one or more series;
. shares of common stock, par value $1.00 per share; and
. warrants to purchase preferred stock or common stock, or
any combination of the foregoing, either individually or
as units consisting of one or more of the foregoing, each
on terms to be determined at the time of sale.
We may issue the debt securities as exchangeable and/or
convertible debt securities exchangeable for or convertible into shares of
common stock or preferred stock. The preferred stock may also be exchangeable
for and/or convertible into shares of common stock or another series of
preferred stock. The debt securities, the preferred stock, the common stock and
the warrants are collectively referred to herein as the "Securities."
DESCRIPTION OF DEBT SECURITIES
This prospectus describes certain general terms and provisions
of our debt securities. When we offer to sell a particular series of debt
securities, we will describe the specific terms of the series in a supplement to
this prospectus. As of the date of this prospectus, we have not determined that
we will offer any debt securities nor have we negotiated an indenture with
respect to any debt securities. Accordingly, the terms of the debt securities
that we describe below (including with respect to covenants, events of default,
indenture provisions, etc.) are general and are subject to the terms of the
fully-negotiated indenture related to any debt securities. We will indicate in
the supplement whether the general terms and provisions described in this
prospectus apply to a particular series of debt securities.
The debt securities offered hereby will be issued under an
indenture between us and the trustee named therein. The indenture is subject to,
and governed by, the Trust Indenture Act of 1939, as amended (the "TIA"). We
have incorporated by reference the indenture as an exhibit to the registration
statement and you should read the indenture for provisions that may be important
to you. We have summarized select portions of the indenture below. The summary
is not complete. Capitalized terms used in the summary below have the meanings
specified in the indenture.
General
The indenture will provide for the issuance of debt securities
in series and will not limit the principal amount of debt securities which may
be issued. In addition, except as may be provided in the prospectus supplement
relating to the debt securities, the indenture will not limit the amount of
additional indebtedness we may incur.
The applicable prospectus supplement or prospectus supplements
will describe the following terms of the series of offered debt securities in
respect of which this prospectus is being delivered:
. the title of the offered debt securities;
. whether the offered debt securities are senior debt
securities, senior subordinated debt securities or
subordinated debt securities or any combination thereof;
. any limit upon the aggregate principal amount of the
offered debt securities;
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. the date or dates on which the principal of the offered
debt securities is payable;
. the rate or rates at which the offered debt securities
will bear interest, if any, or the manner in which such
rate or rates are determined;
. the date or dates from which any such interest will
accrue, the interest payment dates on which any such
interest on the offered debt securities will be payable
and the record dates for the determination of holders to
whom such interest is payable;
. the place or places where the principal of and any
interest on the offered debt securities will be payable;
. our obligation, if any, to redeem, purchase or repay the
offered debt securities in whole or in part pursuant to
any sinking fund or analogous provisions or at the option
of the holders and the price or prices at which and the
period or periods within which and the terms and
conditions upon which the offered debt securities shall be
redeemed, purchased or repaid pursuant to such obligation;
. the denominations in which any offered debt securities
will be issuable, if other than denominations of U.S.
$1,000 and any integral multiple thereof;
. if other than the principal amount thereof, the portion of
the principal amount of the offered debt securities of the
series which will be payable upon declaration of the
acceleration of the maturity thereof;
. any addition to or change in the covenants which apply to
the offered debt securities;
. any events of default with respect to the offered debt
securities, if not otherwise set forth under "Events of
Default";
. whether the offered debt securities will be issued in
whole or in part in global form, the terms and conditions,
if any, upon which such global offered debt securities may
be exchanged in whole or in part for other individual
securities, and the depositary for the offered debt
securities;
. the terms and conditions, if any, upon which the offered
debt securities shall be exchanged for or converted into
other securities or property;
. the provisions, if any, relating to any security provided
for offered debt securities; and
. any other terms of the offered debt securities which terms
shall not be inconsistent with the provisions of the
indenture.
We may issue debt securities at a discount from their principal
amount (original issue discount securities). Federal income tax considerations
and other special considerations applicable to any original issue discount
securities will be described in the applicable prospectus supplement.
We may issue debt securities in bearer form, with or without
coupons. Federal income tax considerations and other special considerations
applicable to bearer securities will be described in the applicable prospectus
supplement.
Unless otherwise indicated in this prospectus or a prospectus
supplement, the debt securities will not have the benefit of any covenants that
limit or restrict our business or operations, the pledging of our assets or the
incurrence of indebtedness by us.
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Status of Debt Securities
The senior debt securities will be unsubordinated obligations
and will rank pari passu with all of our other unsecured and unsubordinated
indebtedness.
Our obligations pursuant to senior subordinated debt securities
will be subordinate in right of payment, to the extent and in the manner set
forth in the indenture, to all of our senior indebtedness. Except to the extent
set forth in the prospectus supplement, we define our "senior indebtedness" to
mean the principal of, and premium, if any, and any interest (including interest
accruing subsequent to the commencement of any proceeding for our bankruptcy or
reorganization under any applicable bankruptcy, insolvency or similar law now or
hereafter in effect) on
. all of our indebtedness whether heretofore or hereafter
incurred for borrowed money or in connection with the
acquisition by us or our subsidiaries of assets other than
in the ordinary course of business, for the payment of
which we are liable directly or indirectly by guarantee,
letter of credit, obligation to purchase or acquire or
otherwise, or the payment of which is secured by a lien,
charge or encumbrance on assets acquired by us;
. amendments, modifications, renewals, extensions and
deferrals of any such indebtedness; and
. any indebtedness issued in exchange for any such
indebtedness (the three bullet points hereof being
collectively referred to herein as "Debt"); provided,
however, that the following will not constitute senior
indebtedness with respect to senior subordinated debt
securities:
. any Debt as to which, in the instrument evidencing
such Debt or pursuant to which such Debt was issued,
it is expressly provided that such Debt is
subordinate in right of payment to all of our Debt
not expressly subordinated to such Debt;
. any Debt which by its terms refers explicitly to the
senior subordinated debt securities and states that
such Debt shall not be senior in right of payment;
and
. any of our Debt in respect of the senior subordinated
debt securities or any subordinated debt securities.
We will not issue Debt which is subordinated in right of payment to any of our
other Debt and which is not expressly made pari passu with, or subordinate and
junior in right of payment to, the senior subordinated debt securities.
Our obligations pursuant to subordinated debt securities will
be subordinate in right of payment to all of our senior indebtedness and to any
senior subordinated debt securities; provided, however, that the following will
not constitute senior indebtedness with respect to subordinated debt securities:
. any Debt as to which, in the instrument evidencing such
Debt or pursuant to which such Debt was issued, it is
expressly provided that such Debt is subordinate in right
of payment to all of our Debt not expressly subordinated to
such Debt; and
. any of our Debt in respect of subordinated debt securities
and any Debt which by its terms refers explicitly to the
subordinated debt securities and states that such Debt
shall not be senior in right of payment.
No payment pursuant to the senior subordinated debt securities
or the subordinated debt securities, as the case may be, may be made unless all
amounts of principal, premium, if any, and interest then due on all of our
applicable senior indebtedness shall have been paid in full or if there shall
have occurred and be continuing beyond any applicable grace period a default in
any payment with respect to any such senior indebtedness, or if there shall have
occurred any Event of Default with respect to any such senior indebtedness
permitting the holders thereof to
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accelerate the maturity thereof, or if any judicial proceeding shall be pending
with respect to any such default. However, we may make payments pursuant to the
senior subordinated debt securities or the subordinated debt securities, as the
case may be, if a default in payment or an Event of Default with respect to the
senior indebtedness permitting the holder thereof to accelerate the maturity
thereof has occurred and is continuing and judicial proceedings with respect
thereto have not been commenced within a certain number of days of such default
in payment or Event of Default. Upon any distribution of our assets upon
dissolution, winding-up, liquidation or reorganization, the holders of our
senior indebtedness will be entitled to receive payment in full of principal,
premium, if any, and interest (including interest accruing subsequent to the
commencement of any proceeding for our bankruptcy or reorganization under any
applicable bankruptcy, insolvency or similar law now or hereafter in effect)
before any payment is made on the senior subordinated debt securities or
subordinated debt securities, as applicable. By reason of such subordination, in
the event of our insolvency, holders of our senior indebtedness may receive
more, ratably, and holders of the senior subordinated debt securities or
subordinated debt securities, as applicable, having a claim pursuant to the
senior subordinated debt securities or subordinated debt securities, as
applicable, may receive less, ratably, than our other creditors. Such
subordination will not prevent the occurrence of any Event of Default (as
defined below) in respect of the senior subordinated debt securities or the
subordinated debt securities.
If we offer debt securities, the applicable prospectus
supplement will set forth the aggregate amount of outstanding indebtedness, if
any, as of the most recent practicable date that by the terms of such debt
securities would be senior to such debt securities. There does not currently
exist any absolute limitation on the amount of senior indebtedness that may be
issued in the future. However, the applicable prospectus supplement will also
set forth any limitation on our issuance of any additional senior indebtedness.
Conversion Rights
The terms, if any, on which debt securities of a series may be
exchanged for or converted into shares of common stock or preferred stock will
be set forth in the prospectus supplement relating thereto. These terms will
include whether such debt securities are convertible into common stock or
preferred stock, the conversion price (or manner of calculation thereof), the
conversion period, provisions as to whether conversion will be at the option of
the holders or at our option, the events requiring an adjustment of the
conversion price and provisions affecting conversion in the event of the
redemption of such debt securities.
Exchange, Registration, Transfer and Payment
Unless otherwise specified in the applicable prospectus
supplement, payment of principal, premium, if any, and any interest on the debt
securities will be payable, and the exchange of and the transfer of debt
securities will be registerable, at the office of the Trustee or at any other
office or agency maintained by us for such purpose subject to the limitations of
the indenture. Unless otherwise indicated in the applicable prospectus
supplement, the debt securities will be issued in denominations of U.S. $1,000
or integral multiples thereof. No service charge will be made for any
registration of transfer or exchange of the debt securities, but we may require
payment of a sum sufficient to cover any tax or other governmental charge
imposed in connection therewith.
Global Debt Securities
The debt securities of a series may be issued in the form of
one or more global securities that will be deposited with a depositary or its
nominee identified in the applicable prospectus supplement. In such a case, one
or more global securities will be issued in a denomination or aggregate
denominations equal to the portion of the aggregate principal amount of
outstanding debt securities of the series to be represented by such global
security or securities. Each global security will be deposited with such
depositary or nominee or a custodian therefor and will bear a legend regarding
the restrictions on exchanges and registration of transfer thereof referred to
below and any such other matters as may be provided for pursuant to the
indenture.
Notwithstanding any provision of the indenture or any debt
security described herein, no global security may be transferred to, or
registered or exchanged for debt securities registered in the name of, any
person or entity other than the depositary for such global security or any
nominee of such depositary, and no such transfer may be registered, unless
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. the depositary has notified us that it is unwilling or
unable to continue as depositary for such global security or
has ceased to be qualified to act as such as required by the
applicable indenture;
. we execute and deliver to the trustee an order that such
global security shall be so transferable, registrable and
exchangeable, and such transfers shall be registrable;
. an Event of Default with respect to the debt securities
represented by such global security shall have happened and
be continuing; or
. there shall exist such circumstances, if any, as may be
described in the applicable prospectus supplement.
All debt securities issued in exchange for a global security or any portion
thereof will be registered in such names as the depositary may direct.
The specific terms of the depositary arrangement with respect to
any portion of a series of debt securities to be represented by a global
security will be described in the applicable prospectus supplement. We expect
that the following provisions will apply to depositary arrangements.
Unless otherwise specified in the applicable prospectus
supplement, debt securities which are to be represented by a global security to
be deposited with or on behalf of a depositary will be represented by a global
security registered in the name of such depositary or its nominee. Upon the
issuance of such global security, and the deposit of such global security with
or on behalf of the depositary for such global security, the depositary will
credit, on its book-entry registration and transfer system, the respective
principal amounts of the debt securities represented by such global security to
the accounts of institutions that have accounts with such depositary or its
nominee ("participants"). The accounts to be credited will be designated by the
underwriters or agents of such debt securities or by us, if such debt securities
are offered and sold directly by us. Ownership of beneficial interests in such
global security will be limited to participants or persons that may hold
interests through participants. Ownership of beneficial interests by
participants in such global security will be shown on, and the transfer of that
ownership interest will be effected only through, records maintained by the
depositary or its nominee for such global security. Ownership of beneficial
interests in such global security by persons that hold through participants will
be shown on, and the transfer of that ownership interest within such participant
will be effected only through, records maintained by the participant. The laws
of some jurisdictions require that certain purchasers of securities take
physical delivery of such securities in certificated form. The foregoing
limitations and such laws may impair the ability to transfer beneficial
interests in such global securities.
So long as the depositary for a global security, or its nominee,
is the registered owner of such global security, such depositary or such
nominee, as the case may be, will be considered the sole owner or holder of the
debt securities represented by such global security for all purposes under the
indenture. Unless otherwise specified in the applicable prospectus supplement,
owners of beneficial interests in such global security will not be entitled to
have debt securities of the series represented by such global security
registered in their names, will not receive or be entitled to receive physical
delivery of debt securities of such series in definitive or certificated form
and will not be considered the holders thereof for any purposes under the
indenture. Accordingly, each person owning a beneficial interest in such global
security must rely on the procedures of the depositary and, if such person is
not a participant, on the procedures of the participant through which such
person owns its interest, to exercise any rights of a holder under the
indenture. If we request any action of holders or if an owner of a beneficial
interest in such global security desires to give any notice or take any action a
holder is entitled to give or take under the indenture, the depositary will
authorize the participants to give such notice or take such action, and
participants would authorize beneficial owners owning through such participants
to give such notice or take such action or would otherwise act upon the
instructions of beneficial owners owning through them.
Notwithstanding any other provisions to the contrary in the
indenture, the rights of the beneficial owners of the debt securities to receive
payment of the principal and premium, if any, of and interest on such debt
securities, on or after the respective due dates expressed in such debt
securities, or to institute suit for the
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enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of the beneficial owners.
Principal of and any interest on a global security will be
payable in the manner described in the applicable prospectus supplement.
Consolidation, Merger and Sale of Assets
Without any required consent of holders of outstanding debt
securities, we may not consolidate with or merge into, or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of our
property or assets to any person unless:
. we are the surviving corporation or the entity or the person
formed by or surviving any such consolidation or merger (if
other than us) or to which such sale, assignment, transfer,
lease, conveyance or other disposition shall have been made
is a corporation organized and existing under the laws of
the United States, any state thereof or the District of
Columbia;
. the entity or person formed by or surviving any such
consolidation or merger (if other than us) or the entity or
person to which such sale, assignment, transfer, lease,
conveyance or other disposition shall have been made assumes
all of our obligations under the debt securities and the
indenture; and
. immediately prior to and after the transaction no default
(as defined in the indenture) or Event of Default (as
indicated below) exists.
Certain Other Covenants
The applicable prospectus supplement will describe any material
covenants in respect of a series of offered debt securities. Other than the
covenants that are included in the indenture as described above or as described
in the applicable prospectus supplement, the indenture will not provide holders
of debt securities protection in the event of a highly-leveraged transaction,
reorganization, restructuring, merger or similar transaction involving us which
could adversely affect holders of debt securities.
Events of Default
Unless otherwise specified in the applicable prospectus
supplement, the following will constitute events of default (each an "Event of
Default") under the indenture with respect to debt securities of any series:
. failure to pay principal of and premium, if any, on any debt
security of that series when due and payable at maturity,
upon redemption or otherwise;
. failure to pay any interest on any debt security of that
series when due, and the Default continues for 30 days;
. an Event of Default, as defined in the debt securities of
that series, occurs and is continuing, or we fail to comply
with any of our other agreements in the debt securities of
that series or in the indenture with respect to that series
and the Default continues for the period and after the
notice provided therein (and described below); and
. certain events of bankruptcy, insolvency or reorganization.
A Default under the third bullet point above is not an Event of Default with
respect to a particular series of Securities until the trustee or the holders of
at least 50% in principal amount of the then outstanding Securities of that
series notify us of the Default and we do not cure the Default within 30 days
after receipt of the notice. The notice must specify the Default, demand that
it be remedied and state that the notice is a "Notice of Default."
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If an Event of Default with respect to outstanding debt
securities of any series (other than an Event of Default relating to certain
events of bankruptcy, insolvency or reorganization) shall occur and be
continuing, either the trustee or the holders of at least 50% in principal
amount of the outstanding debt securities of that series by notice, as provided
in the indenture, may declare the unpaid principal amount (or, if the debt
securities of that series are Original Issue Discount Securities, such lesser
amount as may be specified in the terms of that series) of, and any accrued and
unpaid interest on, all debt securities of that series to be due and payable
immediately. However, at any time after a declaration of acceleration with
respect to debt securities of any series has been made, but before a judgment or
decree based on such acceleration has been obtained, the holders of a majority
in principal amount of the outstanding debt securities of that series may, under
certain circumstances, rescind and annul such acceleration. For information as
to waiver of defaults, see "Modification and Waiver" below.
The indenture will provide that, subject to the duty of the
trustee during an Event of Default to act with the required standard of care,
the trustee will be under no obligation to exercise any of its rights or powers
under the applicable indenture at the request or direction of any of the
holders, unless such holders shall have offered to the trustee reasonable
security or indemnity. Subject to certain provisions, including those requiring
security or indemnification of the trustee, the holders of a majority in
principal amount of the outstanding debt securities of any series will 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.
We will be required to furnish to the trustee under the indenture
annually a statement as to our performance of our obligations under that
indenture and as to any default in such performance.
Modification and Waiver
We and the trustee may amend the indenture or the debt securities
with the written consent of the holders of a majority in principal amount of the
then outstanding debt securities of each series affected by the amendment with
each series voting as a separate class, except that the right of any holder to
receive payment of principal of, premium, if any, and interest, if any, on the
debt securities, on or after the respective due dates expressed in such
securities, or to bring suit for the enforcement of any such payment on or after
such respective dates, may not be impaired or affected without the consent of
the holder. The holders of a majority in principal amount of the then
outstanding debt securities of any series may also waive compliance in a
particular instance by us with any provision of the indenture with respect to
the debt securities of that series; provided, however, that without the consent
of each holder of debt securities affected, an amendment or waiver may not:
. reduce the percentage of the principal amount of debt
securities whose holders must consent to an amendment or
waiver;
. reduce the rate or change the time for payment of interest
on any debt security;
. reduce the principal of or change the fixed maturity of any
debt security, reduce the amount of, or postpone the date
fixed for redemption or alter the conversion provisions;
. make any debt security payable in money other than that
stated in the debt security;
. make any change in the provisions concerning the matters
covered by this sentence with respect to waivers and
consents, waivers of Default or Events of Default by holders
or the rights of holders to recover the principal of, or
interest on, any debt security; or
. waive a default in the payment of the principal of, or
interest on, any debt security, except as otherwise provided
in the indenture.
We and the trustee may amend the indenture or the debt securities without notice
to or the consent of any holder of a debt security:
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. to cure any ambiguity, defect or inconsistency;
. to comply with the indenture's provisions with respect to
successor corporations;
. to comply with any requirements of the Commission in
connection with the qualification of the indenture under the
TIA;
. to provide for uncertificated debt securities in addition to
or in place of certificated debt securities;
. to add to, change or eliminate any of the provisions of the
indenture in respect of one of more series of debt
securities, provided, however, that any such addition,
change or elimination
. shall neither apply to any debt security of any
series created prior to the execution of such
amendment and entitled to the benefit of such
provision, nor modify the rights of a holder of
any such debt security with respect to such
provision; or
. shall become effective only when there is no
outstanding debt security of any series created
prior to such amendment and entitled to the
benefit of such provision;
. to make any change that does not adversely affect in any
material respect the interest of any holder of any series;
or
. to establish additional series of debt securities as
permitted by the indenture.
The holders of a majority in principal amount of the then
outstanding debt securities of any series, by notice to the trustee, may waive
an existing Default or Event of Default and its consequences except a Default or
Event of Default in the payment of the principal of, or any interest on, any
debt security with respect to the debt securities of that series. However, the
holders of a majority in principal amount of the then outstanding debt
securities of an applicable series, by notice to the trustee, may rescind an
acceleration of the unpaid principal and accrued interest on such series and the
consequences of such acceleration if the rescission would not conflict with any
judgment or decree and if all existing Events of Default with respect to that
series have been cured or waived except nonpayment of principal (or such lesser
amount) or interest that has become due solely because of the acceleration.
Termination of Our Obligations under the Debt Securities and the Indenture
Except as otherwise described below, we may terminate our
obligations under the debt securities of any series and the indenture with
respect to that series of debt securities if:
. all previously authenticated and delivered debt securities
of that series (other than destroyed, lost or stolen debt
securities which have been replaced or debt securities which
are paid or debt securities for whose payment money or
securities has theretofore been held in trust and thereafter
repaid to us) have been delivered to the trustee for
cancellation and we have paid all sums payable by us under
the indenture; or
. the debt securities mature within one year or all such debt
securities are to be called for redemption within one year
after arrangements satisfactory to the trustee for giving
the notice of redemption; and we irrevocably deposit in
trust with the trustee during such one-year period, under
the terms of an irrevocable trust agreement in form and
substance satisfactory to the trustee, as trust funds solely
for the benefit of the holders of debt securities for that
purpose, money or U.S. government obligations, or a
combination thereof, with the U.S.
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government obligations maturing as to principal and interest
in such amounts and at such times as are sufficient, without
consideration of any reinvestment of such interest, to pay
principal of and interest on the debt securities to maturity
or redemption, as the case may be, and to pay all other sums
payable by us under the indenture; or
. we effect the following:
. we irrevocably deposit in trust with the trustee
under the terms of an irrevocable trust agreement
in form and substance satisfactory to the trustee,
as trust funds solely for the benefit of the
holders of debt securities for that purpose, money
or U.S. government obligations, or a combination
thereof, with the U.S. government obligations
maturing as to principal and interest in such
amounts and at such times as are sufficient,
without consideration of any reinvestment of such
interest, to pay principal of and interest on the
debt securities to maturity or redemption, as the
case may be;
. we have delivered to the trustee (A) a ruling
directed to the trustee received from the Internal
Revenue Service to the effect that the holders of
the debt securities will not recognize income,
gain or loss for federal income tax purposes as a
result of our exercise of our option under this
third bullet point and will be subject to federal
income tax on the same amount and in the same
manner and at the same times as would have been
the case if such option had not been exercised, or
(B) an opinion of counsel to the same effect as
the ruling described in subclause (A) above
accompanied by a ruling to that effect published
by the Internal Revenue Service, unless there has
been a change in the applicable federal income tax
law since the date of the indenture such that a
ruling from the Internal Revenue Service is no
longer required;
. we have paid or caused to be paid all sums then
payable by us under the indenture; and
. we have delivered to the trustee for such series
an officers' certificate and an opinion of
counsel, each stating that all conditions
precedent provided for in this third bullet point
relating to termination of our obligations have
been complied with.
Our obligations under sections of the indenture relating to the
registrar and the paying agent, their obligations, the maintenance of a list of
holders, transfers of debt securities, replacement of securities, payment
(together with payment obligations under the debt securities), compensation and
indemnity of the trustee, replacement of the trustee and repayment to us of
excess money held by the trustee or the paying agent, shall survive until the
debt securities are no longer outstanding. If the ruling from the Internal
Revenue Service or opinion of counsel referred to in the second sub-bullet point
of the third bullet point above is based on or assumes that our payment
obligations under the indenture or our payment obligations under the debt
securities will continue (or is silent with respect thereto), then such
discharge shall constitute only a "covenant defeasance" and, consequently, we
shall remain liable for the payment of the debt securities. However, if and when
a ruling from the Internal Revenue Service or opinion of counsel referred to in
the second sub-bullet point of the third bullet point above is able to be
provided specifically without regard to, and not in reliance upon, the
continuance of our payment obligations under the indenture and our payment
obligations under the debt securities, then our payment obligations under the
indenture and the debt securities shall cease upon delivery to the trustee of
such ruling or opinion of counsel and compliance with the other conditions
precedent provided for in the third bullet point above relating to the
satisfaction and discharge of the indenture. In such a case (a "legal
defeasance") holders would be able to look only to the trust fund for payment of
principal and any interest on the debt securities.
Regarding the Trustees
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The trustee with respect to the first series of debt securities, if
any, will be identified in the prospectus supplement relating to such debt
securities. Other trustees may be designated for any subsequent series of debt
securities. The indenture and provisions of the TIA incorporated by reference
therein, contain certain limitations on the rights of the trustee, should it
become a creditor of ours, to obtain payment of claims in certain cases, or to
realize on certain property received in respect of any such claim, as security
or otherwise. The trustee and its affiliates may engage in, and will be
permitted to continue to engage in, other transactions with us and our
affiliates; provided, however, that if it acquires any conflicting interest (as
defined), it must eliminate such conflict or resign.
The holders of a majority in principal amount of the then outstanding
debt securities of any series will have the right to direct the time, method and
place of conducting any proceeding for exercising any remedy available to the
trustee. The TIA and the indenture provide that in case an Event of Default
shall occur (and be continuing), the trustee will be required, in the exercise
of its rights and powers, to use the degree of care and skill of a prudent man
in the conduct of his own affairs. Subject to such provision, the trustee will
be under no obligation to exercise any of its rights or powers under the
indenture at the request of any of the holders of the debt securities issued
thereunder, unless they have offered to the trustee indemnity satisfactory to
it.
DESCRIPTION OF WARRANTS
We may issue equity warrants. Warrants may be issued independently or
together with any Securities and may be attached to or separate from such
securities. The warrants are to be issued under warrant agreements to be
entered into between us and a bank or trust company, as warrant agent, all as
shall be set forth in the prospectus supplement relating to warrants being
offered pursuant thereto. As of the date hereof, we have no warrants
outstanding.
The applicable prospectus supplement will describe the terms of equity
warrants offered thereby, the warrant agreement relating to such equity warrants
and the equity warrant certificates representing such equity warrants (together
with debt warrant certificates, "Warrant Certificates"), including the
following:
. the title of such equity warrants;
. the Securities (i.e. preferred stock or common stock) for which
such equity warrants are exercisable;
. the price or prices at which such equity warrants will be issued;
. if applicable, the designation and terms of the preferred stock
or common stock with which such equity warrants are issued, and
the number of such equity warrants issued with each such share of
preferred stock or common stock;
. if applicable, the date on and after which such equity warrants
and the related preferred stock or common stock will be
separately transferable;
. if applicable, a discussion of any material federal income tax
considerations; and
. any other terms of such equity warrants, including terms,
procedures and limitations relating to the exchange and exercise
of such equity warrants.
Equity warrant certificates will be exchangeable for new equity
warrant certificates of different denominations, and equity warrants may be
exercised at the corporate trust office of the warrant agent or any other office
indicated in the prospectus supplement. Holders of equity warrants will not be
entitled, by virtue of being such holders, to vote, to consent, to receive
dividends, to receive notice as stockholders with respect to any meeting of our
stockholders for the election of our directors or any other matter, or to
exercise any rights whatsoever as our stockholders.
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Exercise of Warrants
Each warrant will entitle the holder to purchase for cash such
principal amount of Securities at such exercise price as shall in each case be
set forth in, or be determinable as set forth in, the prospectus supplement
relating to the warrants offered thereby. Warrants may be exercised at any time
up to the close of business on the expiration date set forth in the prospectus
supplement relating to the warrants offered thereby. After the close of
business on the expiration date, unexercised warrants will become void.
Warrants may be exercised as set forth in the prospectus supplement
relating to the warrants offered thereby. Upon receipt of payment and the
Warrant Certificate properly completed and duly executed at the corporate trust
office of the warrant agent or any other office indicated in the prospectus
supplement, we will, as soon as practicable, forward the Securities purchasable
upon such exercise. If less than all of the warrants represented by such
Warrant Certificate are exercised, a new Warrant Certificate will be issued for
the remaining warrants.
DESCRIPTION OF PREFERRED STOCK
The following description of the terms of the preferred stock sets
forth certain general terms and provisions of the preferred stock to which any
prospectus supplement may relate. Certain other terms of any series of the
preferred stock offered by any prospectus supplement will be described in such
prospectus supplement. The description of certain provisions of the preferred
stock set forth below and in any prospectus supplement does not purport to be
complete and is subject to and qualified in its entirety by reference to our
restated certificate of incorporation, and the certificate of designation
relating to each series of the preferred stock which will be filed with the
Commission and incorporated by reference in the registration statement of which
this prospectus is a part at or prior to the time of the issuance of such series
of the preferred stock.
General
We have the authority to issue 25,000,000 shares of preferred stock,
$1.00 par value per share (which includes the preferred stock offered by this
prospectus).
We have authorized 600,000 shares of Series A Junior Participating
Preferred Stock ("Junior Preferred Stock") in connection with our dividend
distribution of one Preferred Share Purchase Right for each outstanding share of
our common stock. Each Right entitles its holder to buy one one-hundredth of a
share of the Junior Preferred Stock at an exercise price of $60 per share. The
Rights only become exercisable if a person or group acquires or makes an offer
to acquire 15 percent or more of our common stock. As of the date hereof, we
have no preferred stock outstanding.
Under our certificate of incorporation, our board of directors is
authorized without further stockholder action to designate and provide for the
issuance of up to 25,000,000 shares of preferred stock, in one or more series,
with such voting powers, full or limited, and with such designations,
preferences and relative participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, as shall be stated in the
resolution or resolutions providing for the issue of a series of such stock
adopted, at any time or from time to time, by our board of directors (as used
herein the term "our board of directors" includes any duly authorized committee
thereof).
The preferred stock shall have the dividend, liquidation, redemption
and voting rights set forth below unless otherwise provided in a prospectus
supplement relating to a particular series of the preferred stock. Reference is
made to the prospectus supplement relating to the particular series of the
preferred stock offered thereby for specific terms, including:
. the designation and stated value per share of such preferred
stock and the number of shares offered;
. the amount of liquidation preference per share;
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. the initial public offering price at which such preferred stock
will be issued;
. the dividend rate (or method of calculation), the dates on which
dividends shall be payable and the dates from which dividends
shall commence to cumulate, if any;
. any redemption or sinking fund provisions;
. any conversion or exchange rights; and
. any additional voting, dividend, liquidation, redemption, sinking
fund and other rights, preferences, privileges, limitations and
restrictions.
The preferred stock will, when issued, be fully paid and nonassessable
and will have no preemptive rights. The rights of the holders of each series of
the preferred stock will be subordinate to those of our general creditors.
Dividend Rights
Holders of the preferred stock of each series will be entitled to
receive, when, as and if declared by our board of directors, out of our funds
legally available therefor, cash dividends on such dates and at such rates as
are set forth in, or as are determined by the method described in, the
prospectus supplement relating to such series of the preferred stock. Such rate
may be fixed or variable or both. Each such dividend will be payable to the
holders of record as they appear on our stock books on such record dates, fixed
by our board of directors, as specified in the prospectus supplement relating to
such series of preferred stock.
Such dividends may be cumulative or noncumulative, as provided in the
prospectus supplement relating to such series of preferred stock. If our board
of directors fails to declare a dividend payable on a dividend payment date on
any series of preferred stock for which dividends are noncumulative, then the
right to receive a dividend in respect of the dividend period ending on such
dividend payment date will be lost, and we will have no obligation to pay any
dividend for such period, whether or not dividends on such series are declared
payable on any future dividend payment dates. Dividends on the shares of each
series of preferred stock for which dividends are cumulative will accrue from
the date on which we initially issue shares of such series.
Unless otherwise specified in the applicable prospectus supplement, so
long as the shares of any series of the preferred stock are outstanding, unless:
. full dividends (including if such preferred stock is cumulative,
dividends for prior dividend periods) have been paid or declared
and set apart for payment on all outstanding shares of the
preferred stock of such series and all other classes and series
of our preferred stock (other than Junior Stock, as defined
below); and
. we are not in default or in arrears with respect to the mandatory
or optional redemption or mandatory repurchase or other mandatory
retirement of, or with respect to any sinking or other analogous
funds for, any shares of preferred stock of such series or any
shares of any of our other preferred stock of any class or series
(other than Junior Stock), we may not declare any dividends on
any shares of common stock or any of our other stock ranking as
to dividends or distributions of assets junior to such series of
preferred stock (the common stock and any such other stock being
herein referred to as "Junior Stock"), or make any payment on
account of, or set apart money for, the purchase, redemption or
other retirement of, or for a sinking or other analogous fund
for, any shares of Junior Stock or make any distribution in
respect thereof, whether in cash or property or in obligations of
our stock, other than in Junior Stock which is neither
convertible into nor exchangeable or exercisable for, any of our
securities other than Junior Stock.
Liquidation Preferences
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Unless otherwise specified in the applicable prospectus supplement, in
the event of any liquidation, dissolution or winding up, whether voluntary or
involuntary, the holders of each series of the preferred stock will be entitled
to receive out of our assets available for distribution to stockholders, before
any distribution of assets is made to the holders of common stock or any other
shares of our stock ranking junior as to such distribution to such series of the
preferred stock, the amount set forth in the prospectus supplement relating to
such series of the preferred stock. If, upon any voluntary or involuntary
liquidation, dissolution or winding up, the amounts payable with respect to the
preferred stock of any series and any other shares of our preferred stock
(including any other series of the preferred stock) ranking as to any such
distribution on a parity with such series of the preferred stock are not paid in
full, the holders of the preferred stock of such series and of such other shares
of our preferred stock will share ratably in any such distribution of our assets
in proportion to the full respective preferential amounts to which they are
entitled. After payment to the holders of the preferred stock of each series of
the full preferential amounts of the liquidating distribution to which they are
entitled, unless otherwise provided in the applicable prospectus supplement, the
holders of each such series of the preferred stock will be entitled to no
further participation in any distribution of our assets.
Redemption
A series of the preferred stock may be redeemable, in whole or from
time to time in part, at our option, and may be subject to mandatory redemption
pursuant to a sinking fund or otherwise, in each case upon terms, at the times
and at the redemption prices set forth in the prospectus supplement relating to
such series. Shares of the preferred stock redeemed by us will be restored to
the status of authorized but unissued shares of our preferred stock.
In the event that fewer than all of the outstanding shares of a series
of the preferred stock are to be redeemed, whether by mandatory or optional
redemption, the number of shares to be redeemed will be determined by lot or pro
rata (subject to rounding to avoid fractional shares) as may be determined by us
or by any other method as may be determined by us in our sole discretion to be
equitable. From and after the redemption date (unless default is made by us in
providing for the payment of the redemption price plus accumulated and unpaid
dividends, if any) dividends will cease to accumulate on the shares of the
preferred stock called for redemption and all rights of the holders thereof
(except the right to receive the redemption price plus accumulated and unpaid
dividends, if any) will cease.
Unless otherwise specified in the applicable prospectus supplement, so
long as any dividends on shares of any series of the preferred stock or any
other series of our preferred stock ranking on a parity as to dividends and
distribution of assets with such series of the preferred stock are in arrears,
no shares of any such series of the preferred stock or such other series of our
preferred stock will be redeemed (whether by mandatory or optional redemption)
unless all such shares are simultaneously redeemed, and we will not purchase or
otherwise acquire any such shares; provided, however, that the foregoing will
not prevent the purchase or acquisition of shares pursuant to a purchase or
exchange offer made on the same terms to holders of all such shares outstanding.
Conversion and Exchange Rights
The terms, if any, on which shares of preferred stock of any series
may be exchanged for or converted into shares of common stock or another series
of preferred stock will be set forth in the prospectus supplement relating
thereto. Such terms may include provisions for conversion, either mandatory, at
the option of the holder, or at our option, in which case the number of shares
of common stock or the number of shares of another series of preferred stock to
be received by the holders of preferred stock would be calculated as of a time
and in the manner stated in the prospectus supplement.
Voting Rights
Except as indicated in a prospectus supplement relating to a
particular series of the preferred stock, or except as required by applicable
law, the holders of the preferred stock will not be entitled to vote for any
purpose.
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PLAN OF DISTRIBUTION
We may sell the Securities to one or more underwriters for public
offering and sale by them or may sell the Securities to investors directly or
through agents. Any such underwriter or agent involved in the offer and sale of
Securities will be named in the applicable prospectus supplement. We have
reserved the right to sell Securities directly to investors on our own behalf in
those jurisdictions where and in such manner as we are authorized to do so.
Underwriters may offer and sell Securities:
. at a fixed price or prices, which may be changed;
. at market prices prevailing at the time of sale;
. at prices related to such prevailing market prices; or
. at negotiated prices.
We also may, from time to time, authorize dealers, acting as our agents, to
offer and sell Securities upon the terms and conditions as are set forth in the
applicable prospectus supplement. In connection with the sale of Securities,
underwriters may receive compensation from us in the form of underwriting
discounts or commissions and may also receive commissions from purchasers of the
Securities for whom they may act as agent. Underwriters may sell Securities to
or through dealers, and such 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 agent.
Any underwriting compensation paid by us to underwriters or agents in
connection with the offering of Securities, and any discounts, concessions or
commissions allowed by underwriters to participating dealers, will be set forth
in the applicable prospectus supplement. Dealers and agents participating in the
distribution of Securities may be deemed to be underwriters, and any discounts
and commissions received by them and any profit realized by them on resale of
the Securities may be deemed to be underwriting discounts and commissions.
Underwriters, dealers and agents may be entitled, under agreements entered into
with us, to indemnification against and contribution toward certain civil
liabilities, including liabilities under the Securities Act of 1933.
To facilitate the offering of Securities, certain persons
participating in the offering may engage in transactions that stabilize,
maintain or otherwise affect the price of the Securities. This may include over-
allotments or short sales of the Securities, which involves the sale by persons
participating in the offering of more Securities than we sold to them. In these
circumstances, these persons would cover such over-allotments or short positions
by making purchases in the open market or by exercising their over-allotment
option. In addition, these persons may stabilize or maintain the price of the
Securities by bidding for or purchasing debt securities in the open market or by
imposing penalty bids, whereby selling concessions allowed to dealers
participating in the offering may be reclaimed if Securities sold by them are
repurchased in connection with stabilization transactions. The effect of these
transactions may be to stabilize or maintain the market price of the Securities
at a level above that which might otherwise prevail in the open market. These
transactions may be discontinued at any time.
Certain of the underwriters, dealers or agents and their associates
may engage in transactions with and perform services for us in the ordinary
course of our business.
LEGAL MATTERS
Certain legal matters with respect to the Securities offered by this
prospectus will be passed upon for us by Latham & Watkins, San Francisco,
California.
20
<PAGE>
EXPERTS
The consolidated financial statements of Cordant Technologies Inc.
incorporated by reference in Cordant Technologies Inc.'s Annual Report (Form
10-K) for the year ended December 31, 1998 have been audited by Ernst & Young
LLP, independent auditors, as set forth in their report thereon incorporated by
reference therein and incorporated herein by reference. Such consolidated
financial statements are incorporated herein by reference in reliance upon such
report given upon the authority of such firm as experts in accounting and
auditing.
21
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The expenses to be paid by us in connection with the distribution of
the securities being registered are as set forth in the following table:
<TABLE>
<S> <C>
Securities and Exchange Commission Fee................... $ 139,920
*Rating Agency Fees...................................... 120,000
*Legal Fees and Expenses................................. 50,000
*Accounting Fees and Expenses............................ 15,000
*Blue Sky Fees........................................... 10,000
*Trustee/Issuing & Paying Agent Fees and Expenses........ 10,000
*Miscellaneous........................................... 5,080
--------------
*Total.............................................. $ 350,000
==============
</TABLE>
___________
*Estimated.
Item 15. Indemnification of Directors and Officers
The Company has the power, pursuant to Section 145 of the Delaware General
Corporation Law, to limit the liability of its directors from certain breaches
of fiduciary duty and to indemnify its directors, officers and other persons for
certain acts.
Articles NINTH of the Company's Certificate of Incorporation provide as follows:
"NINTH: A. A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of
the director's duty of loyalty to the Corporation or its stockholders, (ii)
for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the
General Corporation Law of the State of Delaware, or (iv) for any
transaction from which the director derived an improper personal benefit.
If the General Corporation Law of the State of Delaware is amended to
authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by the
General Corporation Law of the State of Delaware, as so amended. Any repeal
or modification of this Section A by the stockholders of the Corporation
shall not adversely affect any right or protection of a director of the
Corporation existing at the time of such repeal or modification.
B. (1) Each person who was or is made a party or is threatened to be made a
party to or is involved in any action, suit, or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a "proceeding"), by
reason of the fact that he or she or a person of whom he or she is the
legal representative is or was a director, officer or employee of the
Corporation or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service
with respect to employee benefit plans, whether the basis of such
proceeding is alleged action in an official capacity as a director,
officer, employee or agent or in any other capacity while serving as a
director, officer, employee or agent, shall be indemnified and held
harmless by the Corporation to the fullest extent authorized by the General
Corporation Law of the State of Delaware as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide
prior to such amendment), against all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or
penalties and amounts paid or to be paid in settlement) reasonably incurred
or suffered by such person in connection therewith and such indemnification
shall continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of his or her heirs,
executors and administrators; provided, however, that except as provided in
paragraph (2) of this Section B with respect to proceedings seeking to
enforce rights to
II-1
<PAGE>
indemnification, the Corporation shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated
by such person only if such proceeding (or part thereof) was authorized by
the Board of Directors of the Corporation. The right to indemnification
conferred in this Section B shall be a contract right and shall include the
right to be paid by the Corporation the expenses incurred in defending any
such proceeding in advance of its final disposition; provided, however,
that if the General Corporation Law of the State of Delaware requires, the
payment of such expenses incurred by a director or officer in his or her
capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such person while a director or officer,
including, without limitation, service to an employee benefit plan) in
advance of the final disposition of a proceeding, shall be made only upon
delivery to the Corporation of an undertaking by or on behalf of such
director or officer, to repay all amounts so advanced if it shall
ultimately be determined that such director or officer is not entitled to
be indemnified under this Section B or otherwise.
(2) If a claim under paragraph (1) of this Section B is not paid in full by
the Corporation within thirty days after a written claim has been received
by the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid
also the expense of prosecuting such claim. It shall be a defense to any
such action (other than an action brought to enforce a claim for expenses
incurred in defending any proceeding in advance of its final disposition
where the required undertaking, if any is required, has been tendered to
the Corporation) that the claimant has not met the standards of conduct
which make it permissible under the General Corporation Law of the State of
Delaware for the Corporation to indemnify the claimant for the amount
claimed, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its Board of
Directors, independent legal counsel or stockholders) to have made a
determination prior to the commencement of such action that indemnification
of the claimant is proper in the circumstances because he or she has met
the applicable standard of conduct set forth in the General Corporation Law
of the State of Delaware, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel or
stockholders) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
(3) The right to indemnification and the payment of expenses incurred in
defending a proceeding in advance of its final disposition conferred in
this Section B shall not be exclusive of any other right which any person
may have or hereafter acquire under any statute, provision of the
certificate of incorporation, By-Law, agreement, vote of stockholders or
disinterested directors or otherwise.
(4) The Corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the Corporation or
another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the Corporation
would have the power to indemnify such person against such expense,
liability or loss under the General Corporation Law of the State of
Delaware.
(5) The Corporation may, to the extent authorized from time to time by the
Board of Directors, grant rights to indemnification, and rights to be paid
by the Corporation the expenses incurred in defending any proceeding in
advance of its final disposition, to any agent of the Corporation to the
fullest extent of the provisions of this Section B with respect to the
indemnification and advancement of expenses of directors, officers and
employees of the Corporation."
Item 16. Exhibits
<TABLE>
<S> <C>
1.1* Form of Underwriting Agreement.
4.1 Restated Certificate of Incorporation of the Company, which was filed as Exhibit 3 to the Company's
Annual Report on Form 10-K for the fiscal year ended June 30, 1989, and is incorporated by reference
herein.
4.2 Bylaws of the Company, as amended to date, which were filed as Exhibit 3 to the Company's Annual
Report on Form 10-K for the fiscal year ended June 30, 1993, and are incorporated by reference
herein.
4.3 Rights Agreement dated May 22, 1997, between the Company and First Chicago Trust Company of New
York, which was filed as Exhibit 4 filed with the Company's Form 8-A dated May 28, 1997, and is
incorporated by reference herein.
4.4 Indenture dated as of March 3, 1998, between the Company and Harris Trust and Savings Bank, which
was filed as Exhibit 4.1 to the Company's Report on Form 8-K dated March 4, 1998, and is
</TABLE>
II-2
<PAGE>
<TABLE>
<S> <C>
incorporated by reference herein.
4.5* Form of Warrant Agreement for Equity Securities.
5.1 Opinion of Latham & Watkins.
12.1 Statement regarding Computation of Ratios.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Latham & Watkins (included in Exhibit 5.1).
24.1 Powers of Attorney (included on Page II-5).
25.1** Statement of Eligibility of Trustee on Form T-1.
</TABLE>
___________
*To be filed by a report on Form 8-K pursuant to Regulation S-K, Item 601(b).
**To be filed by amendment.
Item 17. Undertakings
(a) The undersigned Registrant 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 the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
the registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the SEC pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price represent
no more than a 20 percent change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table in the effective
registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement; provided, however, that the information required to be included
in a post-effective amendment by paragraphs (a)(1)(i) and (a)(1)(ii) above
may be contained in periodic reports filed by the Registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 and (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 the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
II-3
<PAGE>
(e) The undersigned registrant hereby undertakes to deliver or cause
to be delivered with the prospectus, to each person to whom the prospectus is
sent or given, the latest annual report, to security holders that is
incorporated by reference in the prospectus and furnished pursuant to and
meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Securities
Exchange Act of 1934; and, where interim financial information required to be
presented by Article 3 of Regulation S-X is not set forth in the prospectus, to
deliver, or cause to be delivered to each person to whom the prospectus is sent
or given, the latest quarterly report that is specifically incorporated by
reference in the prospectus to provide such interim financial information.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of their counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Salt Lake City, Utah on January 5, 2000.
CORDANT TECHNOLOGIES INC.
By /s/ James R. Wilson
---------------------------------------
James R. Wilson
Chairman of the Board, President
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below does hereby constitute and appoint Richard L. Corbin with full
power of substitution and full power to act without the other, such person's
true and lawful attorney-in-fact and agent to act for such person in such
person's name, place and stead, in any and all capacities, to sign any or all
amendments (including post-effective amendments) to this Registration Statement
on Form S-3, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises in order to effectuate the same as fully, to all intents
and purposes, as such person might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on January 5, 2000.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
Chairman of the Board, President and Chief Executive
Officer (Principal Executive Officer)
/s/ James R. Wilson
- -----------------------------------------------
James R. Wilson
Executive Vice President and Chief Financial Officer
(Principal Financial Officer)
/s/ Richard L. Corbin
- -----------------------------------------------
Richard L. Corbin
Vice President and Controller
(Principal Accounting Officer)
/s/ Michael R. Ayers
- -----------------------------------------------
Michael R. Ayers
Director
/s/ Neil A. Armstrong
- -----------------------------------------------
Neil A. Armstrong
Director
/s/ Michael P.C. Carns
- -----------------------------------------------
Michael P.C. Carns
</TABLE>
II-5
<PAGE>
<TABLE>
<S> <C>
Director
/s/ Edsel D. Dunford
- -----------------------------------------------
Edsel D. Dunford
Director
/s/ Robert H. Jenkins
- -----------------------------------------------
Robert H. Jenkins
Director
- -----------------------------------------------
Steven G. Lamb
Director
/s/ David J. Lesar
- -----------------------------------------------
David J. Lesar
Director
/s/ Charles S. Locke
- -----------------------------------------------
Charles S. Locke
Director
/s/ D. Larry Moore
- -----------------------------------------------
D. Larry Moore
Director
/s/ William O. Studeman
- -----------------------------------------------
William O. Studeman
Director
/s/ Donald C. Trauscht
- -----------------------------------------------
Donald C. Trauscht
</TABLE>
II-6
<PAGE>
EXHIBIT INDEX
<TABLE>
<S> <C>
1.1* Form of Underwriting Agreement.
4.1 Restated Certificate of Incorporation of the Company, which was filed as Exhibit 3 to the Company's
Annual Report on Form 10-K for the fiscal year ended June 30, 1989, and is incorporated by reference
herein.
4.2 Bylaws of the Company, as amended to date, which were filed as Exhibit 3 to the Company's Annual
Report on Form 10-K for the fiscal year ended June 30, 1993, and are incorporated by reference
herein.
4.3 Rights Agreement dated May 22, 1997, between the Company and First Chicago Trust Company of New
York, which was filed as Exhibit 4 filed with the Company's Form 8-A dated May 28, 1997, and is
incorporated by reference herein.
4.4 Indenture dated as of March 3, 1998, between the Company and Harris Trust and Savings Bank, which
was filed as Exhibit 4.1 to the Company's Report on Form 8-K dated March 4, 1998, and is
incorporated by reference herein.
4.5* Form of Warrant Agreement for Equity Securities.
5.1 Opinion of Latham & Watkins.
12.1 Statement regarding Computation of Ratios.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Latham & Watkins (included in Exhibit 5.1).
24.1 Powers of Attorney (included on Page II-5).
25.1** Statement of Eligibility of Trustee on Form T-1.
</TABLE>
___________
*To be filed by a report on Form 8-K pursuant to Regulation S-K, Item 601(b).
**To be filed by amendment.
<PAGE>
EXHIBIT 5.1
[Latham & Watkins Letterhead]
January 6, 2000
Cordant Technologies Inc.
15 W. South Temple, Suite 1600
Salt Lake City, Utah 84101
Re: $650,000,000 Aggregate Offering
Price of Securities of Cordant Technologies Inc.
------------------------------------------------
Ladies and Gentlemen:
In connection with the registration statement on Form S-3 filed on
January 6, 2000 (the "Registration Statement") with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Securities Act"), you have requested our opinion with respect to
the matters set forth below.
You have provided us with a draft prospectus (the "Prospectus") which
is a part of the Registration Statement. The Prospectus provides that it will be
supplemented in the future by one or more supplements to the Prospectus (each a
"Prospectus Supplement"). The Prospectus as supplemented by various Prospectus
Supplements will provide for the issuance and sale by Cordant Technologies Inc.,
a Delaware corporation (the "Company") of up to $650,000,000 aggregate
offering price of (i) one or more series of senior, senior subordinated or
subordinated debt securities (the "Debt Securities"), (ii) one or more series of
preferred stock, par value $1.00 per share (the "Preferred Stock"), (iii) shares
of common stock, par value $1.00 per share (the "Common Stock"), and (iv)
warrants to purchase Common Stock or Preferred Stock (the "Warrants"). The Debt
Securities, Preferred Stock, Common Stock and Warrants are collectively referred
to herein as the "Securities." Any Debt Securities and Preferred Stock may be
exchangeable for or convertible into shares of Common Stock or Preferred Stock.
The Preferred Stock may also be exchangeable for or convertible into shares of
Common Stock. The Debt Securities may be issued pursuant to one or more
indentures (collectively, the "Indentures"), in each case between the Company
and a trustee (each, a "Trustee"). The Warrants may be issued pursuant to one or
more warrant agreements (collectively, the "Warrant Agreements"), in each case
between the Company and a financial institution identified therein as warrant
agent (each, a "Warrant Agent").
In our capacity as counsel to the Company in connection with the
Registration Statement, we are generally familiar with the proceedings taken and
proposed to be taken by the Company in connection with the authorization and
issuance of the Securities. For purposes of this opinion, we have assumed that
such proceedings will be timely and properly completed, in accordance with all
requirements of applicable federal, Delaware and New York laws, in the manner
presently proposed.
We have made such legal and factual examinations and inquiries,
including an examination of originals and copies certified or otherwise
identified to our satisfaction, of all such documents, corporate records and
instruments of the Company as we have deemed necessary or appropriate for
purposes of this opinion. In our examination, we have assumed the genuineness
of all signatures, the authenticity of all documents submitted to us as
originals, and the conformity to authentic original documents of all documents
submitted to us as copies.
We have been furnished with, and with your consent have exclusively
relied upon, certificates of officers of the Company with respect to certain
factual matters. In addition, we have obtained and relied upon such
certificates and assurances from public officials as we have deemed necessary.
<PAGE>
We are opining herein as to the effect on the subject transaction only
of the federal securities laws of the United States, the General Corporation Law
of the State of Delaware, including statutory and reported decisional law
thereunder, and with respect to the opinion set forth in paragraph 1 below, the
internal laws of the State of New York, and we express no opinion with respect
to the applicability thereto, or the effect thereon, of the laws of any other
jurisdiction or, in the case of Delaware, any other laws, or as to any matters
of municipal law or the laws of any local agencies within any state.
Subject to the foregoing and the other qualifications set forth
herein, it is our opinion that, as of the date hereof:
1. When (a) the Registration Statement and any required post-
effective amendment thereto and any and all Prospectus Supplement(s) required by
applicable laws have all become effective under the Securities Act, and (b) when
the Debt Securities have been duly executed and delivered by all parties
thereto, and (c) assuming that the terms of the Indentures as executed and
delivered are as described in the Registration Statement, the Prospectus and the
related Prospectus Supplement(s), and (d) assuming that the Indentures as
executed and delivered do not violate any law applicable to the Company or
result in a default under or breach of any agreement or instrument binding upon
the Company, and (e) assuming that the Indentures as executed and delivered
comply with all requirements and restrictions, if any, applicable to the
Company, whether imposed by any court or governmental or regulatory body having
jurisdiction over the Company, and (f) assuming that the Debt Securities are
then issued and sold as contemplated in the Registration Statement, the
Prospectus and the related Prospectus Supplement(s), the Indentures will
constitute valid and legally binding obligations of the Company, enforceable
against the Company in accordance with the terms of the Indentures.
2. When (a) the Debt Securities have been duly established by the
applicable Indentures (including, without limitation, the adoption by the Board
of Directors of the Company of a resolution duly authorizing the issuance and
delivery of the Debt Securities), duly authenticated by the Trustee and duly
executed and delivered on behalf of the Company against payment therefor in
accordance with the terms and provisions of the applicable Indenture and as
contemplated by the Registration Statement, the Prospectus and the related
Prospectus Supplement(s), and (b) when the Registration Statement and any
required post-effective amendment thereto and any and all Prospectus
Supplement(s) required by applicable laws have all become effective under the
Securities Act, and (c) assuming that the terms of the Debt Securities as
executed and delivered are as described in the Registration Statement, the
Prospectus and the related Prospectus Supplement(s), and (d) assuming that the
Debt Securities as executed and delivered do not violate any law applicable to
the Company or result in a default under or breach of any agreement or
instrument binding upon the Company, and (e) assuming that the Debt Securities
as executed and delivered comply with all requirements and restrictions, if any,
applicable to the Company, whether or not imposed by any court or governmental
or regulatory body having jurisdiction over the Company, and (f) assuming that
the Debt Securities are then issued and sold as contemplated in the Registration
Statement, the Prospectus and the related Prospectus Supplement(s), the Debt
Securities will constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with the terms of the Debt
Securities.
3. The Company has the authority pursuant to its Certificate of
Incorporation to issue up to 200,000,000 shares of Common Stock. Upon
adoption by the Board of Directors of the Company of a resolution in form and
content as required by applicable law and upon issuance and delivery of and
payment for such shares in the manner contemplated by the Registration
Statement, the Prospectus and the related Prospectus Supplement(s) and by such
resolution, such shares of Common Stock (including any Common Stock duly issued
(i) upon the exchange or conversion of any shares of Preferred Stock that are
exchangeable or convertible into Common Stock, (ii) upon the exercise of any
Warrants exercisable for Common Stock or (iii) upon the exchange or conversion
of Debt Securities that are exchangeable or convertible into Common Stock) will
be validly issued, fully paid and nonassessable.
All of the opinions set forth above are subject to the following
exceptions, limitations and qualifications: (i) the effect of bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect relating to or affecting the rights and remedies of creditors; (ii) the
effect of general principles of equity, including without limitation, concepts
of materiality, reasonableness, good faith and fair dealing and the possible
unavailability of specific performance or injunctive relief, regardless of
whether enforcement is considered in a proceeding in equity or at law, and the
discretion of the court before which any proceeding therefor may be brought;
(iii) the unenforceability under certain circumstances under law or court
decisions of provisions providing
<PAGE>
for the indemnification of, or contribution to, a party with respect to a
liability where such indemnification or contribution is contrary to public
policy; and (iv) we express no opinion concerning the enforceability of any
waiver or rights or defenses with respect to stay, extension or usury laws; and
(v) we express no opinion with respect to whether acceleration of Debt
Securities may affect the collectibility of any portion of the stated principal
amount thereof which might be determined to constitute unearned interest
thereon.
To the extent that the obligations of the Company under the Indentures
may be dependent upon such matters, we assume for purposes of this opinion that
the Trustee for each Indenture is duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization; that the Trustee is
duly qualified to engage in the activities contemplated by the applicable
Indenture; that the applicable Indenture has been duly authorized, executed and
delivered by the Trustee and constitutes a legally valid, binding and
enforceable obligation of the Trustee, enforceable against the Trustee in
accordance with its terms; that the Trustee is in compliance, generally and with
respect to acting as Trustee under the applicable Indenture, with all applicable
laws and regulations; and that the Trustee has the requisite organizational and
legal power and authority to perform its obligations under the applicable
Indenture.
We consent to your filing this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption "Legal
Matters" in the Prospectus included therein.
Very truly yours,
/s/ Latham & Watkins
<PAGE>
EXHIBIT 12.1
CORDANT TECHNOLOGIES INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(Millions of Dollars, Except Ratios)
<TABLE>
<CAPTION>
Years Ended
--------------------------------------------------------------------
December 31, December 31, December 31, December 31, December 31,
1998 1997 1996 1995 1994
------------ ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
Fixed charges: $ 24.00 $ 15.10 $13.77 $ 10.85 $ 10.35
Cordant rent/lease expense
Cordant interest on fixed charges (estimated @ 8.00 5.03 4.59 3.62 3.45
1/3 of rent expense)
Cordant interest expense paid 28.30 4.00 3.60 5.40 12.50
------------ ------------ ------------ ------------ ------------
Total fixed charges (a) $ 36.30 $ 9.03 $ 8.19 $ 9.02 $ 15.95
Pretax income excluding cumulative effect of $289.40 $139.80 $86.60 $ 92.10 $ 90.90
accounting changes and extraordinary income
Less Howmet equity income -- 35.30 15.10 -- --
------------ ------------ ------------ ------------ ------------
Add total fixed charges 36.30 9.03 8.19 9.02 15.95
------------ ------------ ------------ ------------ ------------
Adjusted pretax income (b) $325.70 $113.53 $79.69 $101.12 $106.85
============ ============ ============ ============ ============
Ratio of earnings to fixed charges (b/a) 8.97 12.57 9.73 11.21 6.70
============ ============ ============ ============ ============
</TABLE>
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) of Cordant Technologies Inc. dated January 6,
2000 and to the incorporation by reference therein of our report dated February
8, 1999, with respect to the consolidated financial statements of Cordant
Technologies Inc. incorporated by reference in its Annual Report on Form 10-K
for the year ended December 31, 1998, filed with the Securities and Exchange
Commission.
ERNST & YOUNG LLP
Salt Lake City, Utah
January 6, 2000
