As filed with the Securities and Exchange Commission on November 20, 1998
Registration Statement No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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POLAROID CORPORATION
(Exact name of Registrant as specified in its charter)
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DELAWARE 04-1734655
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
784 Memorial Drive
Cambridge, Massachusetts 02139
(781) 386-2000
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
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Thomas M. Lemberg, Esq.
Senior Vice President, General Counsel and Secretary
Polaroid Corporation
784 Memorial Drive
Cambridge, Massachusetts 02139
(781) 386-3228
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copy to:
Raymond W. Wagner, Esq.
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017-3954
(212) 455-2000
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Approximate date of commencement of proposed sale to the public: From time
to time after the Registration Statement becomes effective as determined by
market conditions and other factors.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, 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.
(Continued on following page)
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(Continued from previous page)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Title of Each Class of Proposed Maximum Proposed Maximum
Securities to be Amount to be Aggregate Price Aggregate Offering Amount of
Registered Registered (1) Per Security (2) Price (1) (2) Registration Fee (3)
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities ......... $300,000,000 100% $300,000,000 $83,400
==================================================================================================================
</TABLE>
(1) The initial public offering price of any Debt Securities denominated in any
foreign currencies or currency units shall be the U.S. dollar equivalent
thereof based on the prevailing exchange rates at the respective times such
Debt Securities are first offered. For Debt Securities issued with an
original issue discount, the amount to be registered is calculated as the
initial accreted value of such Debt Securities.
(2) The registration fee has been calculated in accordance with Rule 457(o)
under the Securities Act of 1933, as amended (the "Securities Act"), and
reflects the maximum offering price of Debt Securities that may be issued
rather than the principal amount of any Debt Securities that may be issued
at a discount.
(3) Pursuant to Rule 429 under the Securities Act, the Prospectus included
herein is a combined prospectus that also relates to debt securities that
were registered by the Registration Statement on Form S-3 (File No.
333-0791) (the "Prior Registration Statement"). A filing fee of $64,664 was
paid on November 21, 1996 in connection with the $200,000,000 aggregate
principal amount of Debt Securities that remain eligible to be sold under
the Prior Registration Statement as of January 14, 1998. This Registration
Statement is a new registration statement and constitutes post-effective
amendment No. 1 to the Prior Registration Statement. Such post-effective
amendment shall hereafter become effective concurrently with the
effectiveness of this Registration Statement in accordance with Section 8(a)
of the Securities Act.
---------------
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 or until this Registration Statement shall become effective
on such date as the Securities and Exchange Commission, acting pursuant to said
Section 8(a), may determine.
<PAGE>
PROSPECTUS
[Logo]
POLAROID CORPORATION
784 Memorial Drive
Cambridge, Massachusetts 02139
(781) 386-2000
$500,000,000
Debt Securities
----------------
We will provide specific terms of these securities
in supplements to this Prospectus.
You should read this Prospectus and any supplement carefully before you invest.
----------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is
a criminal offense.
----------------
This Prospectus is dated , 1998.
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 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.
<PAGE>
TABLE OF CONTENTS
About this Prospectus ..................................................... ii
Where You Can Find More Information about Polaroid ........................ ii
The Company ............................................................... 1
Ratios of Earnings to Fixed Charges ....................................... 1
Use of Proceeds ........................................................... 1
Description of Debt Securities ............................................ 1
Limitations on Issuance of Bearer Debt Securities ......................... 12
Certain U.S. Federal Income Tax Consequences to Non-U.S. Persons .......... 13
Plan of Distribution ...................................................... 14
Experts ................................................................... 15
Legal Opinions ............................................................ 15
ABOUT THIS PROSPECTUS
This Prospectus is part of a Registration Statement that we filed with
the Securities and Exchange Commission (the "SEC") utilizing a "shelf"
registration process. Under this shelf process, we may sell the unsecured Debt
Securities described in this Prospectus in one or more offerings up to a total
dollar amount of $500,000,000. This Prospectus provides you with a general
description of the Debt Securities we may offer. Each time we sell Debt
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. You should
read both this Prospectus and any prospectus supplement together with
additional information described below under "Where You Can Find More
Information About Polaroid".
WHERE YOU CAN FIND MORE INFORMATION ABOUT POLAROID
We file annual, quarterly and current reports, proxy statements and
other information with the SEC. You may also read and copy any document we file
at the SEC's public reference rooms in Washington, D.C., New York, New York and
Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference rooms. Our SEC filings are available to the
public over the Internet at the SEC's web site at http://www.sec.gov and at our
web site at http://www.polaroid.com.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be a part of this Prospectus, and information that we file later
with the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings made
with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities
Exchange Act of 1934 until we sell all of the Debt Securities:
o Annual Report on Form 10-K for the year ended December 31, 1997;
o Quarterly Reports on Form 10-Q for the quarters ended March 29, 1998, June
28, 1998 and September 27, 1998; and
o Current Report on Form 8-K filed on June 12, 1998.
You may request a copy of these filings at no cost, by writing or
telephoning our agent at the following address:
Boston EquiServe, L.P.
150 Royal Street
Canton, Massachusetts 02021
Telephone: 800-730-4001
Because we list our common stock on the New York Stock Exchange, you may
also inspect the filings described above, as well other information, at the
offices of the New York Stock Exchange, 20 Broad Street, New York, New York
10005.
You should rely only on the information incorporated by reference or
provided in this Prospectus or any prospectus supplement. We have not
authorized anyone else to provide you with different information. We are not
making an offer of these securities in any state where the offer is not
permitted. You should not assume that the information in this Prospectus or any
prospectus supplement is accurate as of any date other than the date on the
front of those documents.
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THE COMPANY
Polaroid designs, manufactures and markets worldwide a variety of
products that are used primarily in the imaging fields and related industries.
These products include instant photographic cameras and films, electronic
imaging recording devices, conventional films and light polarizing filters and
lenses and are used in consumer and commercial markets around the world,
including in professional photography, graphic arts, scientific, medical,
governmental, educational, insurance, real estate, sunglasses, identification
systems and in other business applications.
Our principal executive offices are located at 784 Memorial Drive,
Cambridge, Massachusetts 02139. Our telephone number is (718) 386-2000. When we
refer to "Polaroid", "we" or "our" in this Prospectus, we mean Polaroid
Corporation and its subsidiaries on a consolidated basis, unless the context
requires otherwise.
RATIOS OF EARNINGS
TO FIXED CHARGES
We have set forth below the ratio of earnings to fixed charges for
Polaroid for the periods indicated. We have computed the ratio of earnings to
fixed charges by dividing earnings available for fixed charges (earnings/(loss)
before income taxes and cumulative effect of changes in accounting principles
plus fixed charges (excluding capitalized interest) by fixed charges. Fixed
charges consist of interest expense (including amortization of deferred
financing costs), the portion of rental expense that is representative of the
interest factor (deemed by us to be one-third) and capitalized interest.
<TABLE>
<CAPTION>
Fiscal Year Ended December 31
- ------------------------------------------------------------------ Nine Months Ended
1993 1994 1995 1996 1997 September 27, 1998
- ------------ -------- ----------- ------------ ----------- -------------------
<S> <C> <C> <C> <C> <C>
2.3(a) 3.3 --(b) 1.4(c) --(d) 1.7
</TABLE>
- --------------------------
(a) In 1993, we recorded a pre-tax expense for restructuring and other charges
of $44.0 million. Excluding the pre-tax restructuring and other charges, the
ratio to fixed charges was 2.9.
(b) Earnings were insufficient to cover fixed charges by $206.2 million after
giving effect to the pre-tax expense for restructuring and other charges of
$247.0 million. Excluding the pre-tax restructuring and other charges, the
ratio of earnings to fixed charges was 1.6.
(c) In 1996, we recorded a pre-tax expense for restructuring and other special
charges of $150.0 million ($7.0 million of which was recorded in cost of
goods sold). Excluding the pre-tax restructuring and other special charges,
the ratio of earnings to fixed charges was 3.8.
(d) Earnings were insufficient to cover fixed charges by $194.5 million after
giving effect to the pre-tax expense for restructuring and other charges of
$340.0 million ($16.5 million of which was recorded in cost of goods sold).
Excluding the pre-tax restructuring and other charges, the ratio of earnings
to fixed charges was 3.4.
USE OF PROCEEDS
We will use the net proceeds that we receive from the sale of the Debt
Securities offered by this Prospectus and the accompanying prospectus
supplement for general corporate purposes. General corporate purposes may
include repayment of other debt, capital expenditures, possible acquisitions,
repurchase of Polaroid's stock and any other purposes that may be stated in any
prospectus supplement. The net proceeds may be invested temporarily or applied
to repay short-term debt until they are used for their stated purpose.
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt Securities summarizes
certain general terms that will apply to the Debt Securities. The description
is not complete, and we refer you to the Indenture, a copy of which is an
exhibit to the Registration Statement of which this Prospectus is a part. For
your reference, in several cases below we have noted the section in the
Indenture that the paragraph summarizes. Capitalized terms have the meanings
assigned to them in the Indenture. The referenced sections of the Indenture and
the definitions of capitalized terms are incorporated by reference in the
following summary.
The Debt Securities will be issued under an Indenture, dated as of
January 9, 1997 (the "Indenture"), between Polaroid and State Street Bank and
Trust Company, as trustee (the "Trustee"). The Indenture provides for the
issuance from time to time of Debt Securities in an unlimited dollar amount and
an unlimited number of series.
Specific Terms Of Each Series
Each time that we issue a new series of Debt Securities, the prospectus
supplement relating to
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that new series will specify the particular amount, price and other terms of
these Debt Securities. These terms may include:
o the title of the Debt Securities;
o any limit on the total principal amount of the Debt Securities;
o the date or dates on which the principal of and premium on the Debt
Securities will be payable or their method of determination;
o the interest rate or rates of the Debt Securities or their method of
determination; the date from which interest will accrue; the interest
payment dates for the Debt Securities; and the regular record dates;
o the place or places where the principal of and premium and interest on the
Debt Securities will be paid;
o the period or periods within which, the price or prices at which and the
terms on which any of the Debt Securities may be redeemed, in whole or in
part at our option;
o the terms on which Polaroid would be required to redeem Debt Securities
pursuant to any sinking fund or analogous provisions, on the occurrence of
certain events or at the option of a holder of Debt Securities; and the
period or periods within which, the price or prices at which and the terms
and conditions on which the Debt Securities will be so redeemed, repaid or
purchased in whole or in part;
o the terms on which Polaroid would be required to permit the conversion of
Debt Securities into stock or other securities of Polaroid or of any other
corporation;
o the terms for the attachment to Debt Securities of warrants, options or
other rights to purchase or sell stock or other securities of Polaroid;
o the portion of the principal amount of the Debt Securities that is payable
on the declaration of acceleration of the maturity other than their
principal amount (these Debt Securities are referred to as "OID Debt
Securities" and are described below);
o whether and to what extent any other means of satisfaction and discharge
(sometimes referred to as "defeasance") will be applicable to the Debt
Securities other than as described below under "Satisfaction and
Discharge; Defeasance";
o any modifications to the Events of Default (as are described below under
"Events of Default, Notice and Waiver");
o any modification to the covenants (as are described below under "Certain
Covenants");
o the currency or currencies or currency unit or currency units in which the
Debt Securities will be denominated or in which payment of the principal
of and premium and interest on any of the Debt Securities will be issued,
if other than U.S. dollars;
o if the principal of and premium or interest on any of the Debt Securities
is to be payable at our election or at the election of a holder of the
Debt Securities or in a currency or currencies or currency unit or
currency units other than that in which the Debt Securities are
denominated, the period or periods within which and the terms and
conditions on which these elections may be made, or the other
circumstances under which the Debt Securities are to be payable; these
provisions may also require the holder of the Debt Securities to bear
currency exchange costs by deduction from these payments;
o if the amount of principal of and premium or interest on any of the Debt
Securities may be determined by reference to an index based on either a
currency or currencies or a currency unit or currency units other than
that in which the Debt Securities are payable or any other method
specifying the manner in which these amounts will be determined;
o if the Debt Securities and coupons are to be issued on the exercise of
warrants, the time, manner and place for these Debt Securities and coupons
to be authenticated and delivered;
o whether and under what circumstances we will pay additional amounts on any
of the Debt Securities and coupons to any holder of Debt Securities who is
not a U.S. person (including a definition of this term) for any tax,
assessment or governmental charge withheld or deducted and whether we will
have the option to redeem these Debt Securities rather than pay additional
amounts;
o the person to whom interest on Debt Securities in registered form will be
payable, if other than the person in whose name those Debt Securities are
registered at the close of business on the regular record dates; the
manner in which, or
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the person to whom, any interest on any Bearer Security of the series
will be payable, if other than on presentation and surrender of the
coupons attached to that security as they mature; and the extent to
which, or the manner in which, any interest payable on a temporary global
Debt Security on an interest payment date will be paid; and
o any other specific terms of the Debt Securities that are not inconsistent
with the Indenture.
(Section 2.2)
We may issue Debt Securities as OID Debt Securities. OID Debt Securities
bear no interest or bear interest at below-market rates and are sold at a
discount below their stated principal amount. The prospectus supplement will
contain any special tax, accounting or other information relating to OID Debt
Securities or to certain other kinds of Debt Securities that may be offered,
including Debt Securities linked to an index or payable in a currency or
currencies other than U.S. dollars.
Ranking
The Debt Securities will be the unsecured obligations of Polaroid and
will rank equally with all of Polaroid's other unsecured and unsubordinated
debt.
Form and Denomination
We may issue Debt Securities of a series in fully registered form
without coupons ("Registered Debt Securities"), in bearer form either with or
without coupons ("Bearer Debt Securities") or any combination of those forms.
(Section 2.2) The prospectus supplement will state whether the Bearer Debt
Securities may be exchanged for Registered Debt Securities. The prospectus
supplement will also state whether the Debt Securities will initially be issued
in temporary form ("Temporary Global Securities") or in definitive form
("Definitive Securities"). (Sections 4.3, 4.4, 4.11 and 4.12)
We will issue Debt Securities in the form of Registered Debt Securities
in denominations of $1,000 or multiples thereof and Debt Securities in the form
of Bearer Debt Securities in denominations of $5,000, unless the prospectus
supplement states otherwise. (Section 4.1)
Certain Covenants
The Indenture includes the following covenants. These covenants use
certain terms that are defined below following the summary of these covenants.
Restrictions on Secured Debt
If Polaroid or any Restricted Subsidiary incurs or guarantees any debt
for money borrowed ("Debt") that is secured by a mortgage, pledge or lien
("Mortgage") on any Principal Property or on any shares of stock or Debt of any
Restricted Subsidiary, then Polaroid will secure (or cause that Restricted
Subsidiary to secure) the Debt Securities to the same extent and in the same
proportion with (or, at Polaroid's option, prior to) that secured Debt. This
restriction does not apply, however, if the total amount of this secured Debt,
together with all Attributable Debt of Polaroid and its Restricted Subsidiaries
that is incurred by sale/leaseback transactions involving Principal Properties
(with the exception of the transactions which are excluded as described below
under "Restrictions on Sale/Leaseback Transactions") is less than or equal to
10% of Consolidated Net Tangible Assets. (Section 11.4)
The above restrictions do not apply to (and the calculation of secured
Debt under these restrictions does not include) Debt secured by any of the
following:
o Mortgages on property of, or on any shares of stock of or Debt of, any
corporation existing at the time that that corporation becomes a
Restricted Subsidiary;
o Mortgages in favor of Polaroid or a Restricted Subsidiary;
o Mortgages in favor of governmental bodies to secure progress or advance
payments;
o Mortgages on property, shares of stock or Debt existing at the time of the
acquisition of these items (including acquisition through merger or
consolidation) and purchase money and construction Mortgages which are
entered into prior to, at the time of or within 180 days after the later
of acquisition or completion of construction;
o any extension, renewal or refunding of any Mortgage referred to in the
preceding six exceptions, provided that any extended, renewed or replaced
Mortgage shall be limited to the same property, stock or Debt that secured
the original Mortgage; and
o Mortgages securing industrial revenue or pollution control bonds.
(Section 11.4)
Restrictions on Sale/Leaseback Transactions
Neither Polaroid nor any Restricted Subsidiary may enter into any
sale/leaseback transaction
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involving any Principal Property, unless the total amount of all Attributable
Debt from these transactions plus all Debt secured by Mortgages on Principal
Properties (with the exception of secured Debt which is excluded from Debt as
described above under "Restrictions on Secured Debt") is less than or equal to
10% of Consolidated Net Tangible Assets. (Section 11.5)
The above restrictions do not apply to (and the calculation of
Attributable Debt under these restrictions does not include) any sale/leaseback
transaction if:
o the lease is for a period, including renewal rights, of not more than
three years;
o the sale or transfer of the Principal Property is made prior to, at the
time of or within 180 days after its acquisition or construction thereon;
o the lease secures or relates to industrial revenue or pollution control
bonds;
o the transaction is between Polaroid and a Restricted Subsidiary or between
Restricted Subsidiaries; or
o within 180 days after the sale or transfer is completed, Polaroid or the
Restricted Subsidiary applies an amount at least equal to the greater of
(a) the net proceeds of the sale of the Principal Property leased back in
the sale/leaseback transaction and (b) the fair market value of the
Principal Property leased back in the sale/ leaseback transaction to any
of (1) the retirement of Debt Securities or other Funded Debt of Polaroid
ranking equally with or senior to all the Debt Securities, (2) the
retirement of Funded Debt of a Restricted Subsidiary or (3) the purchase
of other property that constitutes a Principal Property having a fair
market value at least equal to the value of the Principal Property leased
back. The amount to be applied to the retirement of Funded Debt of
Polaroid or a Restricted Subsidiary is to be reduced by (i) the principal
amount of any Debt Securities and other debt constituting Funded Debt of
Polaroid or a Restricted Subsidiary delivered to the applicable trustee
for retirement and cancellation within this 180-day period and (ii) the
principal amount of Funded Debt voluntarily retired within this 180-day
period (other than those items listed in clause (i) of this sentence).
This exception does not apply to debt that is paid at maturity or pursuant
to any mandatory sinking fund payment or any mandatory prepayment
provision.
(Section 11.5)
Certain Definitions
The covenants which we have summarized above use the following terms:
"Restricted Subsidiary" means a Subsidiary, substantially all of whose
property is located or substantially all of whose business is carried on within
the United States and which owns a "Principal Property" but does not include a
Subsidiary which is primarily engaged in (a) the development and sale or
financing of real property or (b) financing, or assisting in financing, the
acquisition or disposition of products of Polaroid or a Subsidiary by dealers,
distributors or customers. (Section 1.1)
"Subsidiary" means a corporation, at least a majority of whose
outstanding voting stock is, at the time, owned, directly or indirectly, by
Polaroid and/or one or more Subsidiaries. (Section 1.1)
"Principal Property" means any real estate or any manufacturing or
processing plant or warehouse owned or leased by Polaroid or by any Restricted
Subsidiary that is located within the United States and the gross book value of
which (without deduction of any depreciation reserves) on the date on which the
determination is being made exceeds 2% of Consolidated Net Tangible Assets. It
does not include either (a) properties which in the opinion of our Board of
Directors are not of material importance to our business as an entirety or (b)
any portion of any particular property which our Board of Directors determines
is not of material importance to the use or operation of this property.
(Section 1.1)
"Attributable Debt" means the total net amount of rent required to be
paid during the remaining term of certain leases, discounted at the rate per
annum borne by the relevant Debt Securities. (Section 1.1)
"Consolidated Net Tangible Assets" means the total assets (less
applicable reserves and other properly deductible items) on Polaroid's balance
sheet less (a) all current liabilities and (b) goodwill, trade names,
trademarks, patents, organization expenses and other similar intangibles of
Polaroid and its consolidated Subsidiaries. (Section 1.1)
"Funded Debt" means (a) debt for money borrowed having a maturity of
more than 12 months (or renewable or extendible beyond 12 months) and (b)
rental obligations payable more than 12 months from that date under leases
which
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are capitalized in accordance with generally accepted accounting principles.
These rental obligations are to be included as Funded Debt at the amount
capitalized and are to be included for the purposes of the definition of
Consolidated Net Tangible Assets both as an asset and Funded Debt at the amount
capitalized. (Section 1.1)
No Event Risk Covenant
The Indenture does not contain any covenants or other provisions that
give holders of the Debt Securities protection in the event of a highly
leveraged transaction involving Polaroid, except for the "Restrictions on
Secured Indebtedness" and "Restrictions on Sale/Leaseback Transactions"
described above.
Limitation on Merger, Consolidation and Certain Sales of Assets
We may not merge into or consolidate with any other corporation, or
convey or transfer our properties and assets substantially as an entirety to
any person unless:
o the successor is a U.S. corporation;
o the successor assumes on the same terms and conditions all the obligations
under the Debt Securities and the Indenture; and
o immediately after giving effect to the transaction, there is no default
under the Indenture.
(Section 9.1) Upon any merger, consolidation, conveyance or transfer, the
successor will succeed to, and will be substituted in lieu of, Polaroid.
(Section 9.2)
Possible Waiver of Certain Covenants
We will not be required to comply with the restrictive covenants
described above under "Restrictions on Secured Debt" and "Restrictions on
Sale/Leaseback Transactions", if the holders of at least a majority in
principal amount of all series of outstanding Debt Securities affected by that
covenant (acting as one class) waive compliance with it. (Section 11.7)
Computation of Interest
We will calculate the interest that is due on the Debt Securities based
on a 360-day year of twelve 30 day months, unless the prospectus supplement
states otherwise.
Payment and Paying Agents
Payments on Registered Debt Securities
We will pay principal of and premium and interest on Registered Debt
Securities in the designated currency or currency unit at the office of a
paying agent or paying agents as we designate from time to time. At our option,
we may pay interest on Registered Debt Securities by check mailed to the
address of the person that appears in the security register. We will pay
installments of interest on any Registered Debt Security to the person in whose
name the Registered Debt Security is registered at the close of business on the
regular record date for such payments. (Sections 4.6 and 4.1)
Payments on Bearer Debt Securities
We will pay principal of and premium and interest on Bearer Debt
Securities in the designated currency unit at the offices of those paying
agents outside the United States as we may designate from time to time. We will
pay principal and premium on Bearer Debt Securities only against surrender of
these Debt Securities, and we will pay interest on Bearer Debt Securities with
coupons only against surrender of the coupon relating to the particular
interest payment date. (Sections 4.1 and 11.2). We will not make a payment on
any Bearer Debt Security at our office or agency in the United States or by
check mailed to any address in the United States or by transfer to any account
maintained with a bank located in the United States. Notwithstanding the above,
we will make payments on Bearer Debt Securities denominated and payable in U.S.
dollars at the office of Polaroid's paying agent in the Borough of Manhattan in
New York City, if (but only if) payment of the full amount thereof in U.S.
dollars at all offices or agencies outside the United States is illegal or
effectively precluded by exchange controls or other similar restrictions.
(Section 11.2)
Payments of Unclaimed Monies
All moneys that we have deposited with the Trustee or a paying agent or
then held by us (in trust for the payment of principal of or premium and
interest on any Debt Security or coupon) which remain unclaimed two years after
that payment becomes due and payable will be repaid to Polaroid or, if then
held by Polaroid, discharged from that trust. In that event, the holder of that
Debt Security or coupon will be able to look only to Polaroid for payment of
these moneys. (Section 11.3)
Paying Agent
State Street Bank and Trust Company will be designated as Polaroid's
paying agent unless the prospectus supplement states otherwise. The office of
State Street Bank and Trust Company, N.A., an affiliate of State Street Bank
and Trust Company,
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will be the office or agency of Polaroid in the Borough of Manhattan in New
York City where (1) Debt Securities that are issuable solely as Registered Debt
Securities and (2) Debt Securities (subject to the limitations described above
in the case of Bearer Debt Securities) that are issuable solely as Bearer Debt
Securities or as both Registered Debt Securities and Bearer Debt Securities may
be presented or surrendered for payment. We will name any paying agents outside
the United States and any other paying agents in the United States in the
prospectus supplement. (Section 11.2)
At any time, we may designate additional paying agents or rescind the
designation of any paying agent or approve a change in the office through which
any paying agent acts, subject to the limitations described in the Indenture.
(Section 11.2)
Exchange, Registration and Transfer
Exchange
Holders of Debt Securities may present their securities for exchange
under the following conditions:
o Holders of Registered Debt Securities of any series may exchange their
securities for an equal principal amount of other Registered Debt
Securities of different authorized denominations of the same series and
with the same terms.
o Holders of Debt Securities of a series that are issuable as both
Registered Debt Securities and Bearer Debt Securities may exchange the
Bearer Debt Securities of that series (with all unmatured coupons, except
as provided below, and all matured coupons in default) for an equal
principal amount of Registered Debt Securities of the same series of any
authorized denominations and with the same terms.
o If a holder of a Bearer Debt Security (with coupons attached to it)
surrenders that security in exchange for a Registered Debt Security after
a regular record date (or special record date) but before the relevant
interest payment date, then interest will not be payable on that interest
payment date on the Registered Debt Security issued in exchange for the
Bearer Debt Security. Instead, interest will be payable only to the holder
of the coupon issued with the Bearer Debt Security on that interest
payment date.
o Holders of Bearer Debt Securities may not exchange them for Registered
Debt Securities, unless the applicable prospectus supplement describes
that they may do so and applicable rules and regulations permit that
exchange.
Holders of Debt Securities will not be charged a service charge for any
transfer or exchange, but we may require payment of a sum sufficient to cover
any tax or other governmental charge in connection with that transfer or
exchange. (Section 4.4)
Registration and Transfer
Holders of Registered Debt Securities (other than Book-Entry Debt
Securities which are discussed below) may present their securities for
registration of transfer (with the form of transfer endorsed thereon duly
executed) at the office of the security registrar or at the office of any
additional transfer agent designated by us. (Sections 4.4 and 11.2) State
Street Bank and Trust Company will be the initial security registrar under the
Indenture. State Street Bank and Trust Company, N.A., an affiliate of State
Street Bank and Trust Company will initially be designated as the office or
agency of Polaroid in the Borough of Manhattan, New York City where holders of
Debt Securities may present their Debt Securities for registration of transfer
or exchange. State Street Bank and Trust Company, N.A. currently has offices at
61 Broadway, 15th Floor, New York, New York 10006. (Section 4.4)
At any time, we may designate, or rescind the designation of, the
security registrar or any additional transfer agent or approve a change in the
location through which the security registrar or any transfer agent acts.
However, if Debt Securities of a series are issuable solely as Registered Debt
Securities, then we will be required to maintain a transfer agent in each place
of payment for that series. Similarly, if Debt Securities are issuable as both
Registered Debt Securities and Bearer Debt Securities or solely as Bearer Debt
Securities, then we will be required to maintain (in addition to the security
registrar) a transfer agent in a place of payment for that series located
outside of the United States. At any time, we may designate additional transfer
agents for any series of Debt Securities. (Section 11.2)
If we redeem in part any series of Debt Securities, we will not be
required to issue, register the transfer of and/or exchange Debt Securities
under the following conditions.
o If Debt Securities of a series are issuable only as Registered Debt
Securities, we will not be
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required to issue, register the transfer of or exchange Debt Securities
of any series during a period beginning at the opening of business 15
business days before any selection of Debt Securities of that series to
be redeemed and ending at the close of business on the day of mailing of
the relevant notice of redemption.
o If Debt Securities of the series are issuable as Bearer Debt Securities,
we will not be required to issue, register the transfer of or exchange
Debt Securities of any series during a period beginning at the opening of
business 15 business days before any selection of Debt Securities of that
series to be redeemed and ending at the close of business on the day of
the first publication of the relevant notice of redemption.
o If Debt Securities of a series are issuable as both Bearer Debt Securities
and as Registered Debt Securities and there is no publication, we will not
be required to issue, register the transfer of or exchange Debt Securities
of any series during a period beginning at the opening of business 15
business days before any selection of Debt Securities of that series to be
redeemed and ending at the close of business on the day of mailing of the
relevant notice of redemption.
o We will not be required to register the transfer of, or exchange any
Registered Debt Securities selected for redemption, in whole or in part,
except the unredeemed portion of any Registered Debt Securities being
redeemed in part.
o We will not be required to exchange any Bearer Debt Securities selected
for redemption, except to exchange Bearer Debt Securities for Registered
Debt Securities of that series and of like terms that are simultaneously
surrendered for redemption.
(Section 4.4) For a description of restrictions on the exchange, registration
and transfer of Global Debt Securities, see "Global Securities".
Global Securities
We may issue Debt Securities of a series in whole or in part as one or
more global Debt Securities ("Global Debt Securities") in the following two
kinds of forms:
o in either registered or bearer form; and
o in either temporary or definitive form.
We summarize each of these forms below as well as the depositary
arrangements that we anticipate will apply to them.
Depositary Arrangements
The Trustee will deposit the Global Debt Securities of a series with, or
on behalf of, a depositary located in the United States (a "U.S. Depositary")
or a common depositary located outside the United States (a "Common
Depositary") for the benefit of the Euro-clear System ("Euro-clear") or CEDEL,
S.A. ("CEDEL") for credit to the respective accounts of the beneficial owners
of interests in these Debt Securities. All temporary of definitive Global Debt
Securities in bearer form will be deposited with a Common Depositary. (Section
4.3)
The prospectus supplement will describe the specific terms of the
depositary arrangement for Debt Securities of a series that are issued in
global form. None of Polaroid, the Trustee, any paying agent or the security
registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in a Global Debt Security or for maintaining, supervising or
reviewing any records relating to these beneficial ownership interests.
(Section 4.11) We anticipate that the following provisions will apply to all
depositary arrangements with a U.S. Depositary or a Common Depositary.
Temporary Global Securities
If the prospectus supplement specifies, all or any portion of the Debt
Securities of a series that are issuable as Bearer Debt Securities initially
will be represented by one or more temporary Global Debt Securities, without
interest coupons. These Bearer Debt Securities in temporary form will be
deposited with a Common Depositary in London for Morgan Guaranty Trust Company
of New York, Brussels Office, as operator of Euro-clear, and CEDEL for credit
to the respective accounts of the beneficial owners of these Debt Securities
(or to other accounts as they may direct). On and after the date set for the
exchange of these temporary securities, each temporary Global Debt Security
will be exchangeable for definitive Debt Securities in any of the following
three forms:
o in bearer form;
o in registered form;
o in definitive global bearer form; or
o any combination of the above.
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Bearer Debt Securities (including Debt Securities in definitive global
bearer form), which are to be delivered in exchange for a portion of temporary
Global Debt Securities, will not be mailed or otherwise delivered to any
location in the United States in connection with that exchange. (Sections 4.2
and 4.3)
Unless the prospectus states otherwise, we will pay interest on that
portion of temporary Global Debt Securities that is due before the issuance of
definitive Debt Securities to Euro-clear or CEDEL for that portion of the
temporary Global Debt Securities held for its account. As a condition of making
that payment, we will require that Euro-clear or CEDEL deliver to the Trustee a
certificate signed by Euro-clear or CEDEL dated no earlier than that interest
payment date. The certificate must be based on statements provided to it by its
account holders who are beneficial owners of interests in those temporary
Global Debt Securities. The certificate must state either of the following:
o that portion (1) is not beneficially owned by a "U.S. person" and (2) has
not been acquired by or on behalf of a U.S. person or for offer to resell
or for resale to a U.S. person or any person inside the United States;
(for the purposes of the certificate, a "U.S. person" means a citizen or
resident of the United States, a corporation or partnership created or
organized in or under the laws of the United States or an estate or trust
the income of which is subject to U.S. federal income taxation regardless
of its source); or
o if a beneficial interest in that portion has been acquired by a U.S.
person, (1) that that person is a financial institution (as defined in the
U.S. Treasury Regulations promulgated under the Internal Revenue Code of
1986 (the "Code")), purchasing for its own account or has acquired the
Debt Security through a financial institution and (2) that these Debt
Securities are held by a financial institution that has agreed in writing
to comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Code and the U.S. Treasury Regulations and that it did not purchase for
offer to resell or for resale inside the United States.
Euro-clear or CEDEL will credit the interest received by it regarding
these temporary Global Debt Securities to the accounts of their beneficial
owners (or to other accounts as these beneficial owners may direct). (Section
4.3)
Definitive Global Securities
Bearer Debt Securities. If any Debt Securities of a series are issuable
in definitive global bearer form, the prospectus supplement will describe the
circumstances under which beneficial owners of interests in any of these
definitive global Bearer Debt Securities may exchange these interests for Debt
Securities of that series and of like term and principal amount in any
authorized form and denomination. Bearer Debt Securities delivered in exchange
for a portion of definitive Global Debt Securities will not be mailed or
otherwise delivered to any location in the United States in connection with
that exchange. (Section 4.4) We will pay principal of and premium and interest
on definitive global Bearer Debt Securities in the manner described in the
prospectus supplement.
Book-Entry Debt Securities. If Debt Securities of a series are to be
represented by a definitive global Registered Debt Securities to be deposited
with or on behalf of a U.S. Depositary, then these Debt Securities ("Book-Entry
Debt Securities") will be represented by definitive Global Debt Securities
registered in the name of the U.S. Depositary or its nominee. Book-Entry Debt
Securities are subject to the following procedures and rules:
o Following the issuance of definitive Global Debt Securities registered in
the name of the U.S. Depositary, the U.S. Depositary will credit, on its
book-entry registration and transfer system, the principal amounts of the
Book-Entry Debt Securities represented by those Global Debt Securities to
the accounts of institutions that have accounts with that depositary or
its nominee ("participants"). The accounts to be credited will be
designated by the underwriters or agents for the sale of these Book-Entry
Debt Securities or by us, if we sell Debt Securities directly.
o Ownership of Book-Entry Debt Securities will be limited to participants or
persons that may hold interests through participants. Ownership of
Book-Entry Debt Securities will be shown on, and the transfer of that
ownership will be effected only through, records maintained by the U.S.
Depositary or its nominee for the applicable definitive Global Debt
Securities or by participants or persons that hold through participants.
So long as the U.S. Depositary, or its nominee, is the registered owner of
those global Debt Securities, that depositary or its nominee will be
considered the sole owner or holder of the Book-Entry Debt Securities
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represented by those Global Debt Securities for all purposes under the
Indenture.
o We will pay principal, premium and interest on Book-Entry Debt Securities
to the U.S. Depositary or its nominee as the registered owner or the
holder of the Global Debt Securities representing those Book-Entry Debt
Securities.
o Owners of Book-Entry Debt Securities will not be entitled to have those
Debt Securities registered in their names in the security register, will
not receive or be entitled to receive physical delivery of those Debt
Securities in definitive form and will not be considered the owners or
holders thereof under the Indenture.
We expect that the U.S. Depositary for a series of Book-Entry Debt
Securities, following the receipt of any payment of principal of or premium or
interest on the related definitive Global Debt Securities, will immediately
credit participants' accounts with payments in amounts proportionate to their
respective beneficial interests in the principal amount of those Global Debt
Securities as shown on the records of the U.S. Depositary. We also expect that
standing instructions and customary practices will govern the payments by
participants to owners of beneficial interests in any Global Debt Securities
held through these participants and that these payments will be the
responsibility of these participants. These procedures are currently in
practice with securities held for the accounts of customers in bearer form or
registered in "street name".
Some jurisdictions require that certain purchasers of securities take
physical delivery of these securities in definitive form. These limits and laws
impair the ability to purchase or transfer Book-Entry Debt Securities.
Satisfaction and Discharge; Defeasance
Satisfaction and Discharge
At our request, the Indenture will terminate as to the Debt Securities
of any series (except for certain obligations to register the transfer or
exchange of the Debt Securities and related coupons and hold moneys for payment
of these Debt Securities and coupons in trust) when either:
o all the Debt Securities and coupons have been delivered to the Trustee for
cancellation; or
o all the Debt Securities and coupons have become due and payable (or will
become due and payable at their stated maturity within one year or are to
be called for redemption within one year) and we have deposited with the
Trustee in trust, money, in the currency or currencies or currency unit or
currency units in which these Debt Securities are payable, in an amount
sufficient to make all remaining payments on these Debt Securities.
(Section 5.1)
Defeasance
Unless the prospectus supplement states otherwise, if we deposit with
the Trustee money, U.S. government obligations (in the case of Debt Securities
denominated in U.S. dollars) or foreign government obligations (in the case of
Debt Securities and coupons denominated in a foreign currency) that will be
sufficient to pay principal of and interest on these Debt Securities when due,
then we may elect one of the following two options:
o to be discharged after 91 days from all of our obligations regarding that
series of Debt Securities (except for certain obligations to register the
transfer of or exchange Debt Securities and related coupons, replace
stolen, lost or mutilated Debt Securities and coupons, maintain paying
agencies and hold moneys for payment in trust) regarding that series of
Debt Securities; or
o to be released from the restrictions of the covenants described under
"Certain Covenants".
To elect either option described above, we must deliver to the Trustee
an opinion of counsel to the effect that the deposit and related defeasance
described above would not cause the holders of that series to recognize income,
gain or loss for U.S. federal income tax purposes and that the holders of that
series will be subject to U.S. federal income tax in the same amounts, in the
same manner and at the same times as would have been the case if that option
had not been exercised. (Section 5.3)
Events of Default, Notice and Waiver
Events of Default
An "Event of Default" regarding any series of Debt Securities is any one
of the following events:
o default for 30 days in the payment of any interest installment when due
and payable;
o default in the payment of principal or premium when due at its stated
maturity, by declaration, when called for redemption or otherwise;
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o default in the making of any sinking fund payment when due;
o default in the performance of any covenant in the Debt Securities or in
the Indenture for 90 days after notice to Polaroid by the Trustee or by
holders of 25% in principal amount of the outstanding Debt Securities of
that series;
o certain events of bankruptcy, insolvency and reorganization of Polaroid;
and
o any other Event of Default that series that is specified in the prospectus
supplement.
A default regarding a single series of Debt Securities will not
necessarily constitute a default regarding any other series. A Default under
other debt of Polaroid will not be a default under the Indenture.
If an Event for Default for any series of Debt Securities occurs and is
continuing, either the Trustee or the holders of 25% in principal amount of the
outstanding Debt Securities of that series (in the case of certain events of
bankruptcy, insolvency and reorganization, voting as one class with all other
outstanding Debt Securities) may declare the principal of all the Debt
Securities of that series (together with any accrued interest on the Debt
Securities) to be immediately due and payable by notice in writing to Polaroid.
If the holders of Debt Securities give notice of that declaration of
acceleration to Polaroid, then they must also give notice to the Trustee.
The holders of a majority in principal amount of the outstanding Debt
Securities may rescind a declaration of acceleration if:
o Polaroid has paid a sum sufficient to pay principal, interest (including
overdue interest and interest thereon), any premium and the fee and
expenses of the Trustee; and
o any other Events of Default (besides the failure to pay principal due
because of the declaration of acceleration) have been cured or waived.
(Section 6.2)
We are required to file every year with the Trustee an officers'
certificate stating whether any default exists and specifying any default that
exists. (Section 11.6)
Notices
The Trustee is required to give notice to holders of Debt Securities of
a default (which remains uncured or has not been waived) that is known to the
Trustee within 90 days after the occurrence of the default. The Trustee may
withhold this notice, however, if it determines in good faith that the
withholding of the notice is in the interest of the holders of the Debt
Securities. However, the Trustee may not withhold the notice in the case of
default in the payment of principal of and premium or interest on (or a sinking
fund installment on) any of the Debt Securities. In addition, the Trustee is
only required to give notice of the failure by Polaroid to perform any covenant
(other than for payment) until at least 30 days after that failure has become a
default. The term "default" for this purpose means any event which is, or after
notice or lapse of time or both would become, an Event of Default. (Section
7.2)
Certain Rights of the Trustee
The holders of a majority in principal amount of outstanding Debt
Securities of any series may direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee or exercising any trust
or other power conferred on the Trustee. The Trustee may decline to follow that
direction, however, if it either would involve the Trustee in personal
liability or would be unduly prejudicial to holders of the Debt Securities of
that series that do not join in that direction. (Section 6.12) During a
default, Trustee is required to exercise the standard of care that a prudent
man would exercise or use under the circumstances in the conduct of his own
affairs. Otherwise, the Trustee is not obligated, however, to exercise any of
its rights or powers under the Indenture at the request or direction of any of
the holders of Debt Securities unless those holders have offered to the Trustee
reasonable security or indemnity. (Section 7.3)
Waiver
In certain cases, the holders of a majority in principal amount of the
outstanding series of Debt Securities may, on behalf of the holders of all Debt
Securities of that series, waive any past default or Event of Default regarding
that series or compliance with certain provisions of the Indenture. The
following defaults may not, however, be waived:
o default in the payment of the principal of and premium or interest on any
of that series which has not been cured until that time; or
o a default regarding a covenant or provision of the Indenture which cannot
be modified or amended without the consent of the holder of each
outstanding Debt Security of the series affected.
(Section 6.13)
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Modification of the Indenture
Modification Not Requiring Consent of Holders
Without the consent of any holders of Debt Securities, we and the
Trustee may modify the Indenture, among other things, to:
o add to the covenants of Polaroid for the benefit of any series of Debt
Securities;
o add any additional Events of Default for any series of Debt Securities;
o cure any ambiguity or inconsistencies in the Indenture; or
o add any other provision provided that these other provisions are not
adverse to holders of Debt Securities of any series in any material
respect.
(Section 10.1)
Modification Requiring Consent of Holders
With the consent of the holders of at least a majority in principal
amount of the outstanding series of the Debt Securities that would be affected
by a modification of the Indenture, the Indenture permits us and the Trustee to
modify the Indenture or the rights of the holders of the Debt Securities.
However, without the consent of each holder of all of the outstanding Debt
Securities affected by that modification, we may not:
o change the stated maturity date of the principal of (or any installment of
principal of or interest on) any Debt Security;
o reduce the principal amount of, the rate of interest on, or any premium
payable upon the redemption of, any Debt Security;
o reduce the principal amount of an OID Debt Security that would be due and
payable upon acceleration of the maturity of that security;
o change any place of payment where, or the currency or currencies or
currency unit or currency units in which, any Debt Security or any premium
or interest thereon is payable;
o impair the right to sue for the enforcement of any payment on or after the
stated maturity date thereof (or, in the case of redemption, on or after
the redemption date);
o adversely affect the terms of conversion of any Debt Security into stock
or other securities of Polaroid or of any other corporation;
o reduce the percentage in principal amount of the outstanding Debt
Securities of any series required to consent to modify the Indenture or to
consent to any waiver of compliance with the Indenture;
o change Polaroid's obligation, to maintain an office or agency for the
payment of outstanding Debt Securities; or
o modify any of the provisions listed above, the provisions for the waiver
of certain covenants and defaults (except to increase the percentage of
the total principal amount of outstanding Debt Securities required to
modify the Indenture where consent is currently required) or to modify the
provisions for modification or waiver that require the consent of each
holder of the outstanding Debt Securities affected.
(Section 10.2)
Meetings
Purpose and Calling of Meetings
The Indenture contains provisions for convening meetings of the holders
of Debt Securities of any series for any action to be made, given or taken by
holders of Debt Securities. (Section 14.1) The Trustee, Polaroid and the
holders of at least 10% in principal amount of the outstanding Debt Securities
of a series may call a meeting, in each case after notice to holders of that
series has been properly given according to the requirements stated under
"Notices" below. (Section 14.2)
Quorum and Action
Persons entitled to vote a majority in principal amount of the
outstanding Debt Securities of a series will constitute a quorum at a meeting
of holders of Debt Securities of that series. If a meeting is called by holders
of Debt Securities and a quorum does not exist, then the chairman of the
meeting is required to dissolve the meeting. If a meeting is called by either
Polaroid or the Trustee, then the chairman of the meeting may adjourn that
meeting for a period of not less than 10 days and may further adjourn it for a
period of not less than 10 days if a quorum does not exist. (Section 14.4)
Any resolution passed or decision taken at any meeting of holders of
Debt Securities of any series that has been properly held in accordance with
the Indenture will bind all holders of Debt Securities of that series and the
related coupons. (Section 14.4)
Notices
Except as otherwise provided in the Indenture, notices to holders of
Bearer Debt Securities, will be
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given by (1) publication at least once in a daily newspaper in New York City
and in London and in another city or cities as may be specified in such Bearer
Debt Securities and (2) mail to those persons whose names and addresses were
previously filed with the Trustee, within the prescribed time period. Notices
to holders of Registered Debt Securities will be given by mail or by overnight
courier to the addresses of those holders as they appear in the security
register. (Section 1.6)
Title
Title to any Bearer Debt Securities and any related coupons will pass by
delivery. Polaroid, the Trustee and any their agents may treat the bearer of
any Bearer Debt Security or related coupon and, prior to due presentment for
registration of transfer, the registered owner of any Registered Debt Security
(including Registered Debt Securities in global registered form), as the
absolute owner of that security for the purpose of making payment and for all
other purposes. This will be the case whether or not that Debt Security or
coupon shall be overdue and notwithstanding any notice to the contrary.
(Section 4.7)
Replacement of Securities and Coupons
Mutilated Coupons
We will replace any mutilated Debt Security and any Debt Security with a
mutilated coupon relating to it at the expense of the holder and on surrender
of that mutilated Debt Security or Debt Security with a mutilated coupon to the
security registrar. (Section 4.5)
Destroyed, Stolen or Lost Coupons
We will replace Debt Securities or coupons that are destroyed, stolen or
lost at the expense of the holder and on delivery to the security registrar of
evidence of that destruction, loss or theft which is satisfactory to us and the
security registrar. In the case of a coupon that is destroyed, stolen or lost,
that coupon will be replaced (on surrender to the security registrar of the
Debt Security with all other coupons not destroyed, stolen or lost) by issuance
of a new Debt Security in exchange for the Debt Security to which that coupon
relates. Before we issue a replacement Debt Security or coupon, we and the
security registrar may require an indemnity from the party seeking the
replacement security. (Section 4.5)
Bearer Securities
If the Debt Security that we replace is a Bearer Security, we will
deliver that new Debt Security only outside the United States. (Section 4.5)
Governing Law
The laws of the State of New York govern the Indenture and will govern
the Debt Securities and the coupons, including any matters of interpretation
under them. (Section 1.12)
Information Concerning the Trustee
We may from time to time maintain lines of credit, and have other
customary banking relationships, with State Street Bank and Trust Company,
State Street Bank and Trust Company, N.A., an affiliate of State Street Bank
and Trust Company, or with either of their affiliates. State Street Bank and
Trust Company, as successor to The First National Bank of Boston, also serves
as the trustee under Polaroid's Indenture dated as of December 15, 1991,
providing for an unlimited amount of debt securities and under which are issued
and outstanding Polaroid's 8% Notes due March 15, 1999.
Boston EquiServe, L.P., a joint venture, of which State Street Bank and
Trust Company is an affiliate, serves as transfer agent and registrar for our
common stock.
LIMITATIONS ON ISSUANCE OF
BEARER DEBT SECURITIES
Bearer Debt Securities are subject to the following limitations:
o Bearer Debt Securities may not be offered or sold during the "restricted
period" (as defined in U.S. Treasury Regulations Section 1.163-
5(c)(2)(i)(D)(7)) within the United States or its possessions or to U.S.
persons other than to (a) an office located outside the United States and
its possessions of a U.S. financial institution (as defined in Section
1.165-12(c)(1)(v) of the U.S. Treasury Regulations), that purchases for
its own account or for resale or for the account of certain customers, and
provides a certificate stating that it agrees to comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Code and the U.S.
Treasury Regulations, or (b) certain other persons described in Section
1.163--
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5(c)(2)(i)(D)(1)(iii)(B) of the U.S. Treasury Regulations.
o Bearer Debt Securities may not be delivered in connection with their sale
during the restricted period within the United States or its possessions.
o Any distributor (as defined in Section 1.163-5(c)(2)(i)(D)(4) of the U.S.
Treasury Regulations) participating in the offering or sale of Bearer Debt
Securities must agree that (a) it will not offer or sell during the
restricted period any Bearer Debt Securities within the United States or
its possessions or to United States persons other than those described
above, (b) it will not deliver in connection with the sale of Bearer Debt
Securities during the restricted period any Bearer Debt Securities within
the United States or its possessions and (c) it has in effect procedures
reasonably designed to ensure that its employees and agents who are
directly engaged in selling Bearer Debt Securities are aware of the
restrictions on the offers and sales described above.
o Bearer Debt Securities (other than a Bearer Debt Security in temporary
global form) may not be delivered, nor may interest be paid on any Bearer
Debt Securities until delivery to the Trustee of the certificate signed by
either Euro-clear or CEDEL, which is described above under "Global
Securities--Temporary Global Securities".
o Bearer Debt Securities will bear a legend to the following effect: "Any
United States person who holds this obligation will be subject to
limitations under the United States income tax laws, including the
limitations provided in Section 165(j) and 1287(a) of the Internal Revenue
Code."
CERTAIN U.S. FEDERAL INCOME TAX CONSEQUENCES TO NON-U.S. PERSONS
The following is a summary of certain U.S. federal income tax
considerations for beneficial owners of the Debt Securities that are "non-U.S.
persons" under the Code. Under the Code, a "non-U.S. person" means a person
that is not any of the following:
o a citizen or resident of the United States;
o a corporation or partnership created or organized in or under the laws of
the United States or any political subdivision thereof;
o an estate the income of which is subject to U.S. federal income taxation
regardless of its source; or
o a trust which is subject to the supervision of a court within the United
States and the control of one or more U.S. persons.
This summary is based on current law which is subject to change (perhaps
retroactively), is for general purposes only and should not be considered tax
advice. This summary does not represent a detailed description of the federal
income tax consequences to you in light of your particular circumstances. In
addition, it does not represent a detailed description of the U.S. federal
income tax consequences applicable to you if you are subject to special
treatment under the U.S. federal income tax laws (including if you are a
"controlled foreign corporation," "passive foreign investment company" or
"foreign personal holding company"). We cannot assure you that a change in law
will not alter significantly the tax considerations that we describe in this
summary.
You should consult your own tax advisor concerning the particular U.S.
federal income tax consequences to you of the ownership of the Debt Securities,
as well as the consequences to you arising under the laws of any other taxing
jurisdiction.
U.S. Federal Withholding Tax
The 30% U.S. federal withholding tax will not apply to any payment of
principal or interest (including original issue discount) on a particular
series of Debt Securities provided that:
o you do not actually (or constructively) own 10% or more of the total
combined voting power of all classes of our voting stock within the
meaning of the Code and the U.S. Treasury Regulations;
o you are not a controlled foreign corporation that is related to us through
stock ownership;
o you are not a bank whose receipt of interest on the Debt Securities is
described in the Code; and
o if the Debt Securities are issued as Registered Debt Securities, either
(a) you provide your name and address on an IRS Form W-8, and certify,
under penalty of perjury, that you are not a U.S. person or (b) a
financial institution holding the Debt Securities on your behalf
certifies, under penalty of perjury, that it has
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received an IRS Form W-8 from the beneficial owner and provides us with a
copy.
If you cannot satisfy the requirements described above, payments of
premium, and interest (including original issue discount) made to you will be
subject to the 30% U.S. federal withholding tax, unless you provide us with a
properly executed (1) IRS Form 1001 claiming an exemption from withholding
under the benefit of a tax treaty or (2) IRS Form 4224 stating that interest
paid on the Debt Security is not subject to withholding tax because it is
effectively connected with your conduct of a trade or business in the United
States.
The 30% U.S. federal withholding tax will not apply to any gain or
income that you realize on the sale, exchange, retirement or other disposition
of the Debt Security.
U.S. Federal Estate Tax
Your estate will not be subject to U.S. federal estate tax on Debt
Securities of a series beneficially owned by you at the time of your death,
provided that (1) you do not own 10% or more of the total combined voting power
of all classes of our voting stock (within the meaning of the Code and the U.S.
Treasury Regulations) and (2) interest on that Debt Security would not have
been, if received at the time of your death, effectively connected with the
conduct by you of a trade or business in the United States.
U.S. Federal Income Tax
If you are engaged in a trade or business in the United States and
interest on the Debt Securities is effectively connected with the conduct of
that trade or business (although exempt from the 30% withholding tax), you will
be subject to U.S. federal income tax on that interest on a net income basis in
the same manner as if you were a U.S. person as defined under the Code. In
addition, if you are a foreign corporation, you may be subject to a branch
profits tax equal to 30% (or lower applicable treaty rate) of your earnings and
profits for the taxable year, subject to adjustments that are effectively
connected with the conduct by you of a trade or business in the United States.
For this purpose, interest on Debt Securities will be included in earnings and
profits.
Any gain or income realized on the disposition of a Debt Security
generally will not be subject to U.S. federal income tax unless (1) that gain
or income is effectively connected with the conduct of a trade or business in
the United States by you, or (2) you are an individual who is present in the
United States for 183 days or more in the taxable year of that disposition, and
certain other conditions are met.
Information Reporting and Backup Withholding
In general, you will not be required to provide information reporting
and backup withholding regarding payments that we make to you provided that we
do not have actual knowledge that you are a U.S. person and, in the case of a
holder of a Registered Debt Security, we have received from you the statement
described above under "U.S. Federal Withholding Tax."
In addition, you will not be required to pay backup withholding and
provide information reporting regarding the proceeds of the sale of a Debt
Security within the United States or conducted through certain U.S.-related
financial intermediaries, if the payor receives the statement described above
and does not have actual knowledge that you are a U.S. person, as defined under
the Code, or you otherwise establish an exemption.
U.S. Treasury Regulations were recently issued that generally modify the
information reporting and backup withholding rules applicable to certain
payments made after December 31, 1999. In general, the new U.S. Treasury
Regulations would not significantly alter the present rules discussed above,
except in certain special situations.
Any amounts withheld under the backup withholding rules will be allowed
as a refund or a credit against your U.S. federal income tax liability provided
the required information is furnished to the IRS.
PLAN OF DISTRIBUTION
We may sell the Debt Securities in any of three ways:
o through underwriters;
o through agents; or
o directly to a limited number of institutional purchasers or to a single
purchaser.
The prospectus supplement for each series of Debt Securities will
describe that offering, including:
o the name or names of any underwriters;
o the purchase price and the proceeds to us from that sale;
o any underwriting discounts and other items constituting underwriters'
compensation;
14
<PAGE>
o any initial public offering price and any discounts or concessions allowed
or reallowed or paid to dealers; and
o any securities exchanges on which the Debt Securities of that series may
be listed.
Underwriters
If underwriters are used in the sale, we will execute an underwriting
agreement with those underwriters. Unless otherwise set forth in the prospectus
supplement, the obligations of the underwriters to purchase Debt Securities
will be subject to certain conditions. The underwriters will be obligated to
purchase all of the Debt Securities of a series if any are purchased.
The Debt Securities will be acquired by the underwriters for their own
account and may be resold by them from time to time in one or more
transactions, including negotiated transactions, at a fixed public offering
price or at varying prices determined at the time of sale. Underwriters may be
deemed to have received compensation from us in the form of underwriting
discounts or commissions and may also receive commissions from the purchasers
of Debt Securities for whom they may act as agent. Underwriters may sell Debt
Securities to or through dealers. These 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 initial
public offering price and any discounts or concessions allowed or reallowed or
paid to dealers may be changed from time to time.
We may authorize underwriters to solicit offers by certain types of
institutions to purchase Debt Securities from us at the public offering price
stated in the prospectus supplement pursuant to delayed delivery contracts
providing for payment and delivery on a specified date in the future. If we
sell Debt Securities pursuant to these delayed delivery contracts, the
prospectus supplement will state that as well as the conditions to which these
delayed delivery contracts will be subject and the commissions payable for that
solicitation.
Agents
We may also sell Debt Securities through agents designated by us from
time to time. We will name any agent involved in the offer or sale of the Debt
Securities and will list commissions payable by us to these agents in the
prospectus supplement. These agents will be acting on a best efforts basis to
solicit purchases for the period of its appointment, unless we state otherwise
in the prospectus supplement.
Direct Sales
We may sell Debt Securities directly to purchasers. In this case, we
will not engage underwriters or agents in the offer and sale of Debt
Securities.
Indemnification
We may indemnify Underwriters, dealers or agents who participate in the
distribution of Debt Securities against certain liabilities, including
liabilities under the Securities Act of 1933 and agree to contribute to
payments which these underwriters, dealers or agents may be required to make.
No Assurance of Liquidity
Each series of Debt Securities will be a new issue of securities with no
established trading market. Any underwriters that purchase Debt Securities from
us may make a market in these Debt Securities. The underwriters will not be
obligated, however, to make such a market and may discontinue market-making at
any time without notice to holders of the Debt Securities. We cannot assure you
that there will be liquidity in the trading market for any Debt Securities of
any series.
EXPERTS
The consolidated financial statements and schedules of Polaroid and
subsidiary companies as of December 31, 1997 and 1996, and for each of the
years in the three-year period ended December 31, 1997, have been incorporated
by reference herein and in the registration statement in reliance upon the
report of KPMG Peat Marwick LLP, independent certified public accountants,
incorporated by reference herein, and upon the authority of said firm as
experts of accounting and auditing.
The report of KPMG Peat Marwick LLP covering the December 31, 1997,
consolidated financial statements refers to a change in the method of
accounting for depreciation.
LEGAL OPINIONS
Simpson Thacher & Bartlett, New York, New York, has issued an opinion
regarding the legality of the Debt Securities. Thomas M. Lemberg, Esq., who is
the Senior Vice President, General Counsel and Secretary of Polaroid, may issue
an opinion regarding certain other matters for us. Any underwriters, dealers or
agents may be advised about other issues relating to any offering by their own
legal counsel.
15
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses Of Issuance And Distribution
The following is an itemization of all fees and expenses incurred or
expected to be incurred by the Registrant in connection with the issuance and
distribution of the securities being registered hereby, other than underwriting
discounts and commissions. All but the Securities and Exchange Commission
registration fee are estimates and remain subject to future contingencies.
Securities and Exchange Commission
registration fee .................... $ 83,400*
Legal fees and expenses .............. 350,000
Accounting fees and expenses ......... 20,000
Trustee's fees and expenses .......... 20,000
Printing and engraving fees .......... 50,000
Rating Agency Fees ................... 350,000
Blue Sky fees and expenses ........... 50,000
Miscellaneous expenses ............... 6,600
---------
Total ...................................... $ 930,000
=========
* In addition, the Registrant has previously paid a registration fee of $64,664
in connection with the filing of an aggregate principal amount of
$200,000,000 of Debt Securities that remain eligible to be sold under the
Prior Registration Statement and that are being carried forward to the
Prospectus included herein pursuant to Rule 429 under the Securities Act.
Item 15. Indemnification Of Directors And Officers
As permitted by Section 102(b)(7) of the Delaware General Corporation Law
(the "DGCL"), the Registrant's Restated Certificate of Incorporation eliminates
a director's personal liability for monetary damages to the Registrant and its
stockholders arising from a breach of a director's fiduciary duty, except (1)
for liability with respect to an illegal dividend or stock repurchase or (2)
liability for a breach of the director's duty of loyalty to the Registrant or
its stockholders, (3) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law or (4) for any transaction
in which the director derived an improper personal benefit. The effect of this
provision in the Certificate of Incorporation is to eliminate the rights of the
Registrant and its stockholders (through stockholders' derivative suits on
behalf of the Registrant) to recover monetary damages against a director for
breach of fiduciary duty as a director (including breaches resulting from
negligent or grossly negligent behavior) except in the situations described
above.
Section 145 of the DGCL provides for indemnification by the Registrant of
its directors and officers and certain other persons.
The Registrant's By-Laws provide that, to the extent not inconsistent with
Delaware or other applicable law in effect from time to time, the Registrant
shall indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the Registrant) by reason of the fact that he is or was a
director, officer, employee or agent of the Registrant or is or was serving at
the request of the Registrant as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorney's fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of the
Registrant, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
The Registrant's By-Laws also provide that, to the extent not inconsistent
with Delaware or other applicable law in effect from time to time, the
Registrant shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the Registrant to
II-1
<PAGE>
procure a judgment in its favor by reason of the fact that such person acted in
any of the capacities set forth above, against expenses (including attorney's
fees) actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of the
Registrant, except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Registrant unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
that despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for
such expenses which the court shall deem proper.
Generally, a director will be entitled to be indemnified against a claim
if a majority of a quorum of the directors who are not parties to the relevant
legal proceedings, independent legal counsel or the stockholders determine that
the director acted under the relevant standard of conduct set forth in the two
preceding paragraphs.
The Registrant's By-Laws further provide that to the extent that a
director, officer, employee or agent of the Registrant has been successful on
the merits or otherwise in defense of any action, suit or proceeding referred
to above or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith; that the indemnification
provided for by the By-Laws shall not be deemed exclusive of any other rights
to which the indemnified party may be entitled; and that the Registrant is
empowered to purchase and maintain insurance on behalf of a person who is or
was acting in any of the capacities set forth above against any liability
asserted against him and incurred by him in any such capacity, or arising out
of his status as such, whether or not the Registrant would have the power to
indemnify him against such liabilities under the By-Laws.
The Registrant maintains policies of insurance under which directors,
officers and certain employees of the Registrant and its subsidiaries are
insured, subject to certain specific exclusions and deductible maximum amounts,
against loss arising from any civil claim which may be made against them, or
any of them, arising out of any misstatement, misleading statement, omission or
other act done or alleged to have been done, or wrongfully attempted, while
acting in their representative capacities.
Any agreement with underwriters or agents may contain provisions providing
for the indemnified of the Registrant and certain of its directors and officers
in certain circumstances.
Item 16. Exhibits
The following exhibits are filed as part of this Registration Statement:
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<S> <C>
1* Form of Underwriting Agreement.
4.1 Indenture, dated as of January 9, 1997, between Polaroid and State Street Bank and Trust
Company, as Trustee.
4.2 Form of Fixed Rate Security with or without Optional Redemption Provision. (The Form of Debt
Security, included in Exhibit 4.1, is hereby incorporated herein by reference.)
5* Opinion of Simpson Thacher & Bartlett as to the legality of the Debt Securities.
12 Statement of Computation of Ratio of Earnings To Fixed Charges. (The Statement, included as
Exhibit 12 to Polaroid's Form 10-Q for the quarter ended September 27, 1998, is hereby
incorporated herein by reference.)
15.1 Letter Regarding Unaudited Interim Financial Information. (The Letter, included as Exhibit 15 to
Polaroid's Form 10-Q for the quarter ended March 29, 1998, is hereby incorporated by reference
herein.)
15.2 Letter Regarding Unaudited Interim Financial Information. (The Letter, included as Exhibit 15
to Polaroid's Form 10-Q for the quarter ended June 28, 1998, is hereby incorporated by reference
herein.)
15.3 Letter Regarding Unaudited Interim Financial Information. (The Letter, included as Exhibit 15 to
Polaroid's Form 10-Q for the quarter ended September 27, 1998, is hereby incorporated by reference
herein.)
23.1* Consent of KPMG Peat Marwick LLP.
23.2* Consent of Simpson Thacher & Bartlett (The consent is included in Exhibit 5.)
24* Powers of Attorney. (The Powers of Attorney are included on page II-4 of the Registration Statement.)
25* Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939, as
amended, of State Street Bank and Trust Company, as Trustee.
</TABLE>
- ------------
* Filed herewith.
II-2
<PAGE>
In addition, the Registrant hereby agrees to furnish to the Commission,
upon request, copies of certain debt instruments defining the rights of holders
of long-term debt of the kind described in, and pursuant to, Item
601(b)(4)(iii) of Regulation S-K of the Commission.
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;
(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 Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more that a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective Registration Statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the Registration Statement is on Form S-3, Form S-8 or Form F-3, and
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished
to the Commission by the Registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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 Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act, (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section (d) of the Exchange Act) 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act 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 Commission such
indemnification is against public policy as expressed in the Securities Act,
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by a registrant of expenses
incurred or paid by a director, officer or controlling person of such
registrant in the successful defense of any action suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Cambridge, Commonwealth of Massachusetts, on
November 20, 1998.
POLAROID CORPORATION
BY: /s/ GARY T. DICAMILLO
------------------------------
Name: Gary T. Dicamillo
Title: Chairman of the Board And Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Gary T. DiCamillo, Judith G. Boynton and
Thomas M. Lemberg, severally, his true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for him and in his name,
place and stead, and in any and all capacities, to sign this Registration
Statement and any and all amendments to this Registration Statement and
Registration Statement No. 333-0791 of the Registrant, together with all
schedules and exhibits thereto, and to file the same with all scheduled
exhibits thereto and other documents in connection therewith with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, severally, full power and authority to do and perform each and every
act and thing requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as each such person might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or their substitute or substitutes, may lawfully do or cause to be done
by virtue hereof, all on November 20, 1998.
[The rest of this page has been left blank intentionally; the signature page
follows.]
II-4
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated and on November 20, 1998.
<TABLE>
<CAPTION>
Signature Title
- ------------------------------- ---------------------------------------------
<S> <C>
/s/ GARY T. DICAMILLO Chairman of the Board and Chief Executive
- ----------------------------- Officer (Chief Executive Officer)
Gary T. Dicamillo
/s/ JUDITH G. BOYNTON Executive Vice President and Chief Financial
- ----------------------------- Officer (Principal Financial Officer)
Judith G. Boynton
/s/ CARL L. LUEDERS Vice President and Controller (Controller)
- -----------------------------
Carl L. Lueders
/s/ RALPH E. GOMORY Director
- -----------------------------
Ralph E. Gomory
Director
- -----------------------------
Frank S. Jones
/s/ STEPHEN P. KAUFMAN Director
- -----------------------------
Stephen P. Kaufman
/s/ JOHN W. LOOSE Director
- -----------------------------
John W. Loose
/s/ ALBIN F. MOSCHNER Director
- -----------------------------
Albin F. Moschner
/s/ RONALD F. OLSEN Director
- -----------------------------
Ronald F. Olsen
/s/ RALPH Z. SORENSON Director
- -----------------------------
Ralph Z. Sorenson
/s/ DELBERT C. STALEY Director
- -----------------------------
Delbert C. Staley
/s/ CAROLE F. ST. MARK Director
- -----------------------------
Carole F. St. Mark
/s/ BERNEE D. L. STROM Director
- -----------------------------
Bernee D. L. Strom
/s/ ALFRED M. ZEIEN Director
- -----------------------------
Alfred M. Zeien
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<S> <C>
1* Form of Underwriting Agreement.
4.1 Indenture, dated as of January 9, 1997, between Polaroid and State Street Bank and Trust
Company, as Trustee.
4.2 Form of Fixed Rate Security with or without Optional Redemption Provision. (The Form of Debt
Security, included in Exhibit 4.1, is hereby incorporated herein by reference.)
5* Opinion of Simpson Thacher & Bartlett as to the legality of the Debt Securities.
12 Statement of Computation of Ratio of Earnings To Fixed Charges. (The Statement, included as
Exhibit 12 to Polaroid's Form 10-Q for the quarter ended September 27, 1998, is hereby
incorporated herein by reference.)
15.1 Letter Regarding Unaudited Interim Financial Information. (The Letter, included as Exhibit 15 to
Polaroid's Form 10-Q for the quarter ended March 29, 1998, is hereby incorporated by reference
herein.)
15.2 Letter Regarding Unaudited Interim Financial Information. (The Letter, included as Exhibit 15
to Polaroid's Form 10-Q for the quarter ended June 28, 1998, is hereby incorporated by reference
herein.)
15.3 Letter Regarding Unaudited Interim Financial Information. (The Letter, included as Exhibit 15 to
Polaroid's Form 10-Q for the quarter ended September 27, 1998, is hereby incorporated by reference
herein.)
23.1* Consent of KPMG Peat Marwick LLP.
23.2* Consent of Simpson Thacher & Bartlett (The consent is included in Exhibit 5.)
24* Powers of Attorney. (The Powers of Attorney are included on page II-4 of the Registration
Statement.)
25* Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939, as
amended, of State Street Bank and Trust Company, as Trustee.
</TABLE>
- ------------
* Filed herewith.
II-6
POLAROID CORPORATION
DEBT SECURITIES
UNDERWRITING AGREEMENT
----------------------
New York, New York
, 1998
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
Polaroid Corporation, a Delaware corporation (the "Company"), may issue
and sell from time to time series of its debt securities registered under the
registration statement[s] referred to in Paragraph 1(a) hereof (the "Securities"
and, individually, a "Security"). The Company proposes to sell to the
underwriters named in Schedule II hereto (the "Underwriters"), for whom you are
acting as representatives (the "Representative"), a series of Securities, of the
designation, with the terms and in the aggregate principal amount specified in
Schedule I hereto (the "Underwritten Securities" and, individually, an
"Underwritten Security"). If the firm or firms listed in Schedule II hereto
include only the firm or firms listed in Schedule I hereto, then the terms
"Underwriters" and "Representative" shall each be deemed to refer to such firm
or firms.
1. Representations, Warranties and Agreements of the Company. The
Company represents, warrants and agrees that:
(a) [A] [R]egistration statement[s] (No[s]. 333-0791 and 333-_____),
including a prospectus, with respect to the Securities has [have] been
prepared by the Company in conformity with the requirements of the
Securities Act of 1933, as amended (the "Act"), and the rules and
regulations (the "Rules and Regulations") of the Securities and Exchange
Commission (the "Commission") thereunder and has [have] become
effective. As used in this Agreement, (i) "Registration Statement" means
[each] such registration statement, as amended and supplemented to the
date hereof; (ii) "Preliminary Prospectus" means each prospectus
(including all documents incorporated therein by reference) included in
that [the most recently filed] Registration Statement, or amendments or
supplements thereof, before it became effective under the Act, including
any prospectus filed with the Commission pursuant to Rule 424(a) of the
Rules and Regulations; (iii) "Basic Prospectus" means the prospectus
included in the [most recently filed] Registration Statement; and (iv)
"Prospectus" means the Basic Prospectus, together with any prospectus
amendment or supplement (including in each case all documents
incorporated therein by reference) specifically relating to the
Underwritten Securities, as
<PAGE>
2
filed with the Commission pursuant to paragraph (b) of Rule 424 of the
Rules and Regulations. The Commission has not issued any order
preventing or suspending the use of any Prospectus, and no proceedings
for such purposes have been instituted or are pending or, to the
knowledge of the Company, are contemplated by the Commission, and any
request on the part of the Commission for additional information has
been complied with.
(b) The Registration Statements and each Prospectus contain, and
(in the case of any amendment or supplement to any such document, or any
material incorporated by reference in any such document, filed with the
Commission after the date as of which this representation is being made)
will contain at all times during the period specified in Paragraph 7(c)
hereof, all statements which are required by the Act, the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the
rules and regulations of the Commission under such Acts; the Indenture,
dated as of January 7, 1997, by and between the Company and State Street
Bank and Trust Company, as trustee (the "Trustee") pursuant to which the
Underwritten Securities will be issued (the "Indenture") conforms, and
with any amendments and supplements thereto will conform, with the
requirements of the Trust Indenture Act and the rules and regulations of
the Commission thereunder; and the Registration Statements and each
Prospectus do not, and (in the case of any amendment or supplement to
any such document, or any material incorporated by reference in any such
document, filed with the Commission after the date as of which this
representation is being made) will not, at any time during the period
specified in Paragraph 7(c) hereof, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided that the Company makes no representation or warranty as to
information contained in or omitted from any Registration Statement or
any Prospectus in reliance and based upon information furnished to the
Company through the Representative by or on behalf of any Underwriter,
or as to any statements in or omissions from the Statement of
Eligibility of the Trustee under the Indenture.
(c) Neither the Company nor the Significant Subsidiary (as defined
in paragraph (h) hereof) is in violation of its corporate charter or
by-laws or in default under any agreement, indenture or instrument,
except for such defaults that would not result in a material adverse
change, or any development involving a material adverse change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and the
Significant Subsidiary (a "Material Adverse Effect"), otherwise than as
set forth or contemplated in the Prospectus; and the execution, delivery
and performance of this Agreement, the Indenture, the Underwritten
Securities, and any Delayed Delivery Contracts (as defined in Paragraph
3 hereof) and the consummation of the transactions contemplated herein,
and in the Prospectus (including the issuance and sale of the
Underwritten Securities and the use of the proceeds from the
<PAGE>
3
sale thereof as described in the Prospectus under the caption "Use of
Proceeds") have been duly authorized by all necessary corporate action
and do not and will not conflict with or constitute a breach of, or
default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or the
Significant Subsidiary pursuant to, any material agreement, indenture or
instrument to which the Company or the Significant Subsidiary is a party
or by which any of them is bound or to which any of their respective
properties or assets is subject, nor will such action result in a
material violation of the charter or by-laws of the Company or the
Significant Subsidiary or any order, rule or regulation of any court or
governmental agency having jurisdiction over the Company, the
Significant Subsidiary or their respective properties; and except as
required by the Act, the Trust Indenture Act, the Exchange Act and
applicable state securities laws, no consent, authorization or order of,
or filing or registration with, any court or governmental agency is
required for the execution, delivery and performance of this Agreement,
the Delayed Delivery Contracts and the Indenture or the consummation of
the transactions contemplated hereby and thereby.
(d) Except as described in or contemplated by the Registration
Statements and the Prospectus, neither the Company nor any of its
subsidiaries has sustained any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree; and there has not been any material adverse
change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries, except as described in or contemplated by the
Prospectus.
(e) KPMG Peat Marwick LLP ("KPMG"), whose report appears in the
Company's most recent Annual Report on Form 10-K which is incorporated
by reference in each Prospectus, are independent accountants as required
by the Act and the Rules and Regulations.
(f) On the Delivery Date (as defined in Paragraph 6 hereof) (i)
the Indenture will have been validly authorized, executed and delivered
by the Company and duly qualified under the Trust Indenture Act and will
constitute the legally binding obligation of the Company, (ii) the
Underwritten Securities will have been validly authorized and executed
and, upon payment therefor as provided in this Agreement, will be
validly issued and outstanding, and will constitute legally binding
obligations of the Company entitled to the benefits of the Indenture,
and (iii) the Underwritten Securities and the Indenture will conform to
the descriptions thereof contained in the Prospectus.
<PAGE>
4
(g) This Agreement has been validly authorized, executed and
delivered by the Company.
(h) The Company and the Significant Subsidiary have been duly
incorporated and are validly existing and remain subsisting corporations
under the laws of their respective jurisdictions of incorporation, are
duly qualified to do business and in good standing as foreign
corporations in each jurisdiction in which their respective ownership of
properties or the conduct of their respective businesses require such
qualification, except where the failure to so qualify would not have a
Material Adverse Effect, and have power and authority necessary to own
or hold their respective properties and to conduct the businesses in
which they are engaged and, with respect to the Company, to enter into
and perform its obligations under this Agreement; and none of the
subsidiaries of the Company (other than Polaroid International B.V. (the
"Significant Subsidiary")) is a "significant subsidiary", as such term
is defined in Rule 405 of the Rules and Regulations.
(i) There is no material action, suit or proceeding before any
court or governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of the Company, threatened, against or affecting
the Company or the Significant Subsidiary, which is required to be
disclosed in any Prospectus (other than as disclosed therein), or which
might reasonably be expected to have a Material Adverse Effect, or which
might reasonably be expected to materially and adversely affect the
properties or assets thereof or the consummation of the transactions
contemplated in this Agreement or the performance by the Company of its
obligations hereunder.
(j) The financial statements filed as part of the Registration
Statements or included in any Preliminary Prospectus present, or (in the
case of any amendment or supplement to any such document, or any
material incorporated by reference in any such document, filed with the
Commission after the date as of which this representation is being made)
will present at all times during the period specified in Paragraph 7(c)
hereof, fairly, the financial condition and results of operations of the
Company and its consolidated subsidiaries, at the dates and for the
periods indicated, and have been, and (in the case of any amendment or
supplement to any such document, or any material incorporated by
reference in any such document, filed with the Commission after the date
as of which this representation is being made) will be at all times
during the period specified in Paragraph 7(c) hereof, prepared in
conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved. The
supporting schedules incorporated by reference in any Prospectus present
fairly in accordance with GAAP the information required to be stated
therein. The pro forma financial statements and the related notes
thereto incorporated by reference in the Registration Statements and any
Prospectus present fairly the information shown therein, have been
prepared in accordance with the Commission's rules and guidelines with
respect to pro forma financial statements and have been properly
compiled on the bases described therein, and
<PAGE>
5
the assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the
transactions and circumstances referred to therein.
(k) The documents incorporated by reference into any Preliminary
Prospectus or Prospectus have been, and (in the case of any amendment or
supplement to any such document, or any material incorporated by
reference in any such document, filed with the Commission after the date
as of which this representation is being made) will be at all times
during the period specified in Paragraph 7(c) hereof, prepared by the
Company in conformity with the applicable requirements of the Act and
Rules and Regulations and the Exchange Act and the rules and regulations
of the Commission thereunder and such documents have been, or (in the
case of any amendment or supplement to any such document, or any
material incorporated by reference in any such document, filed with the
Commission after the date as of which this representation is being made)
will be at all times during the period specified in Paragraph 7(c)
hereof, timely filed as required thereby.
(l) There are no contracts or other documents which are required
to be filed as exhibits to the Registration Statements by the Act or by
the Rules and Regulations, or which were required to be filed as
exhibits to any document incorporated by reference in any Prospectus by
the Exchange Act or the rules and regulations of the Commission
thereunder, which have not been filed as exhibits to the Registration
Statements or to such document or incorporated therein by reference as
permitted by the Rules and Regulations or the rules and regulations of
the Commission under the Exchange Act as required.
(m) The Company and the Significant Subsidiary have good and valid
title to all or substantially all of their respective properties.
(n) The Company is not, and upon the issuance and sale of the
Underwritten Securities as herein contemplated and the application of
the net proceeds therefrom as described in the Prospectus will not be,
an "investment company" or an entity "controlled" by an "investment
company" as such terms are defined in the Investment Company Act of
1940, as amended (the "1940 Act").
2. Purchase of the Securities by the Underwriters. Subject to the
terms and conditions and in reliance upon the representations and warranties
herein set forth, the Company agrees to sell to each Underwriter, severally and
not jointly, and each Underwriter agrees, severally and not jointly, to purchase
from the Company, at the purchase price and on the other terms set forth in
Schedule I hereto, the principal amount of the Underwritten Securities set forth
opposite its name in Schedule II hereto.
<PAGE>
6
3. Delayed Delivery Contracts. Any offer to purchase Underwritten
Securities by institutional investors solicited by the Underwriters for delayed
delivery shall be made pursuant to contracts substantially in the form of
Exhibit A attached hereto, with such changes therein as the Company and the
Representative may approve (the "Delayed Delivery Contracts"). The Company shall
have the right, in its sole discretion, to approve or disapprove each such
institutional investor. Underwritten Securities which are subject to Delayed
Delivery Contracts are herein sometimes called "Delayed Delivery Underwritten
Securities" and Underwritten Securities which are not subject to Delayed
Delivery Contracts are herein sometimes called "Immediate Delivery Underwritten
Securities".
Contemporaneously with the purchase on the Delivery Date by the
Underwriters of the Immediate Delivery Underwritten Securities pursuant to this
Agreement, the Company will pay to the Representative, for the account of the
Underwriters, the compensation specified in Schedule I hereto for arranging the
sale of Delayed Delivery Underwritten Securities. The Underwriters shall have no
responsibility with respect to the validity or performance of any Delayed
Delivery Contracts.
For the purposes of determining the principal amount of Immediate
Delivery Underwritten Securities to be purchased by each Underwriter, there
shall be deducted from the principal amount of Underwritten Securities to be
purchased by such Underwriter as set forth in Schedule II hereto that portion of
the aggregate principal amount of Delayed Delivery Underwritten Securities that
the principal amount of Underwritten Securities to be purchased by such
Underwriter as set forth in Schedule II hereto bears to the aggregate principal
amount of Underwritten Securities set forth there to be purchased by all of the
Underwriters (in each case as adjusted by the Representative to avoid fractions
of the minimum principal amount in which the Underwritten Securities may be
issued), except to the extent that the Representative determines, in its
discretion, that such deduction shall be otherwise than in such proportion and
so advises the Company.
4. Conditions of the Company's Obligations. The Company shall not be
obligated to deliver any Underwritten Securities except upon payment for all
Immediate Delivery Underwritten Securities to be purchased pursuant to this
Agreement as hereinafter provided.
5. Defaulting Underwriters. If any Underwriter defaults in the
performance of its obligations under this Agreement, the remaining
non-defaulting Underwriters, if any, shall be obligated to purchase the
Immediate Delivery Underwritten Securities which the defaulting Underwriter
agreed but failed to purchase in the respective proportions which the principal
amount of Underwritten Securities set forth in Schedule II hereto to be
purchased by each remaining non-defaulting Underwriter set forth therein bears
to the aggregate principal amount of Underwritten Securities set forth therein
to be purchased by all the remaining non-defaulting Underwriters; provided that
the remaining non-defaulting Underwriters shall not be obligated to purchase any
Immediate Delivery Underwritten Securities if the aggregate principal amount of
<PAGE>
7
Immediate Delivery Underwritten Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase exceeds 9.09% of the total principal
amount of Underwritten Securities, and any remaining non-defaulting Underwriter
shall not be obligated to purchase more than 110% of the principal amount of
Underwritten Securities set forth in Schedule II hereto to be purchased by it.
If the foregoing maximums are exceeded, the remaining non-defaulting
Underwriters, or those other underwriters satisfactory to the Representative who
so agree, shall have the right, but shall not be obligated, to purchase, in such
proportion as may be agreed upon among them, all the Immediate Delivery
Underwritten Securities. If the remaining Underwriters or other underwriters
satisfactory to the Representative do not elect to purchase the Immediate
Delivery Underwritten Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter or the Company,
except that the Company will continue to be liable for the payment of expenses
as set forth in Paragraph 7(k) hereof.
Nothing contained in this Paragraph 5 shall relieve a defaulting
Underwriter of any liability it may have to the Company for damages caused by
its default. If other underwriters are obligated or agree to purchase the
Immediate Delivery Underwritten Securities of a defaulting or withdrawing
Underwriter, either the Representative or the Company may postpone the Delivery
Date for up to seven full business days in order to effect any changes that in
the opinion of counsel for the Company or counsel for the Underwriters may be
necessary in the Registration Statements, any Prospectus or in any other
document or arrangement.
6. Delivery and Payment for the Securities. Delivery of and payment
for the Immediate Delivery Underwritten Securities shall be made at such
address, date and time as may be specified in Schedule I hereto. This date and
time are sometimes referred to as the "Delivery Date". On the Delivery Date the
Company shall deliver the Immediate Delivery Underwritten Securities to The
Depository Trust Company, on behalf of the Representative, for the account of
each Underwriter against payment to the Company by wire transfer of immediately
available funds to a bank account designated by the Company. Time shall be of
the essence, and delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligation of each Underwriter
hereunder. Upon delivery, the Immediate Delivery Underwritten Securities shall
be in registered form and in such denominations as may be set forth on Schedule
I hereto. The certificates representing the Immediate Delivery Underwritten
Securities shall be registered in the name of Cede & Co. and shall be made
available for inspection by the Representative in New York, New York not later
than 2:00 P.M., local time, on the business day prior to the Delivery Date.
<PAGE>
8
7. Further Agreements of the Company. The Company agrees:
(a) To furnish promptly to the Representative and to counsel for
the Underwriters a conformed copy of each Registration Statement as
originally filed and each amendment or supplement thereto filed prior to
the date hereof or relating to or covering the Underwritten Securities,
and a copy of each Prospectus filed with the Commission, including all
documents incorporated therein by reference and all consents and
exhibits filed therewith;
(b) To deliver promptly to the Representative such reasonable
number of the following documents as the Representative may request: (i)
conformed copies of the Registration Statements (excluding exhibits
other than the computation of the ratio of earnings to fixed charges,
the Indenture and this Agreement), (ii) each Prospectus and (iii) any
documents incorporated by reference in the Prospectus;
(c) During such period following the date hereof as, in the
opinion of counsel for the Underwriters, any Prospectus is required by
law to be delivered, to comply with the Act, the Exchange Act, the Trust
Indenture Act and the rules and regulations under each thereof, so as to
permit the completion of the distribution of the Underwritten Securities
as contemplated in this Agreement and in each Prospectus. If at any time
when a prospectus is required by the Act to be delivered in connection
with sales of the Underwritten Securities, any event shall occur or
condition shall exist as a result of which it is necessary, in the
reasonable opinion of counsel for the Underwriters or for the Company,
to amend any Registration Statement or amend or supplement any
Prospectus in order that such Prospectus will not include any untrue
statements of a material fact or omit to state a material fact necessary
in order to make the statements therein not misleading in the light of
the circumstances existing at the time it is delivered to a purchaser,
or if it shall be necessary, in the opinion of such counsel, at any such
time to amend any Registration Statement or amend or supplement any
Prospectus in order to comply with the requirements of the Act or the
Rules and Regulations, the Company will promptly prepare and file with
the Commission, subject to paragraph (d) below, such amendment or
supplement as may be necessary to correct such statement or omission or
to make any such Registration Statement or any such Prospectus comply
with such requirements, and the Company will furnish to the Underwriters
such number of copies of such amendment or supplement as the
Underwriters may reasonably request;
(d) Prior to filing with the Commission during the period referred
to in (c) above (i) any amendment or supplement to any Registration
Statement, (ii) any Prospectus or any amendment or supplement thereto or
(iii) any document incorporated by reference in any of the foregoing or
any amendment or supplement to such incorporated document, to furnish a
copy thereof to the Representative and to counsel for the Underwriters
and not to file any document that shall have been disapproved by the
Representative;
<PAGE>
9
(e) To advise the Representative promptly (i) when any
post-effective amendment to any Registration Statement relating to or
covering the Underwritten Securities becomes effective or any supplement
to any Prospectus shall have been filed, (ii) of any comments from the
Commission or any request or proposed request by the Commission for an
amendment or supplement to any Registration Statement (insofar as the
amendment or supplement relates to or covers the Underwritten
Securities), to any Prospectus, to any document incorporated by
reference in any of the foregoing or for any additional information,
(iii) of the issuance by the Commission of any stop order suspending the
effectiveness of any Registration Statement or any order directed to any
Prospectus or any document incorporated therein by reference or the
initiation or threat of any stop order proceeding or of any challenge to
the accuracy or adequacy of any document incorporated by reference in
any Prospectus, (iv) of receipt by the Company of any notification with
respect to the suspension of the qualification of the Underwritten
Securities for sale in any jurisdiction or the initiation or threat of
any proceeding for that purpose and (v) of the happening of any event
which makes untrue any statement of a material fact made in any
Registration Statement (insofar as such Registration Statement relates
to or covers the Underwritten Securities) or any Prospectus or which
requires the making of a change in any Registration Statement or any
Prospectus in order to make any material statement therein not
misleading;
(f) If, during the period referred to in (c) above, the Commission
shall issue a stop order suspending the effectiveness of any
Registration Statement, to make every reasonable effort to obtain the
lifting of that order at the earliest possible time;
(g) As soon as practicable, to make generally available to its
security holders and to deliver to the Representative an earnings
statement, conforming with the requirements of Section 11(a) of the Act,
covering a period of at least twelve months beginning after the latest
of (i) the most recent effective date of the registration statement
relating to part of the Underwritten Securities, (ii) the effective date
of the most recent post-effective amendment to the last Registration
Statement that became effective prior to the date of this Agreement and
(iii) the date of the Company's most recent Annual Report on Form 10-K
filed with the Commission prior to the date of this Agreement;
(h) So long as any of the Underwritten Securities are outstanding,
to furnish to the Representative copies of all reports and financial
statements furnished by the Company to each securities exchange on which
securities issued by the Company may be listed pursuant to requirements
of or agreements with such exchange or to the Commission pursuant to the
Exchange Act or any rule or regulation of the Commission thereunder;
(i) To endeavor to qualify the Underwritten Securities for offer
and sale under the securities laws of such jurisdictions as the
Representative may reasonably request and to maintain such
qualifications in effect for as long as may be required for the
distribution of
<PAGE>
10
the Underwritten Securities; provided, however, that the Company shall
not be obligated to file any general consent to service of process or to
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is
not otherwise so subject;
(j) To use its best efforts to obtain the listing of the
Underwritten Securities on the securities exchange, if any, set forth on
Schedule I (the "Stock Exchange") on or prior to the Delivery Date and
to cause such listing to be continued so long as any amount of the
Securities remains outstanding; to furnish from time to time any and all
documents, instruments, information and undertakings that may be
necessary in order to effect such listing; and to maintain the same
until none of the Underwritten Securities is outstanding or until such
time as payment of principal of and premium, if any, and interest on all
the Underwritten Securities has been duly provided for, whichever is
earlier; provided that if the Company can no longer reasonably maintain
such listing, the Company shall use its best efforts to obtain and
maintain the quotation for, or listing of, the Underwritten Securities
on such other securities exchange or exchanges as the Company may, with
the approval of the Representative, determine;
(k) To pay the costs incident to the authorization, issuance, sale
and delivery of the Underwritten Securities and any taxes payable in
that connection; the costs incident to the preparation, printing and
filing under the Act of the Registration Statements and any amendments,
supplements and exhibits thereto; the costs incident to the preparation,
printing and filing of any document and any amendments and exhibits
thereto required to be filed by the Company under the Exchange Act; the
costs of distributing the Registration Statements as originally filed
and each amendment and post-effective amendment thereof (including
exhibits), any Preliminary Prospectus, each Prospectus and any documents
incorporated by reference in any of the foregoing documents; the costs
of printing this Agreement and the Delayed Delivery Contracts, if any;
the fees and disbursements of the Company's counsel, accountants and
other advisors; the fees and expenses of the Trustee, including the fees
and disbursements of counsel for the Trustee in connection with the
Indenture and the Underwritten Securities, to the extent the Trustee or
its counsel, as the case may be, requires reimbursement thereof; the
costs of any filings with the National Association of Securities
Dealers, Inc.; fees paid to rating agencies in connection with the
rating of the Securities, including the Underwritten Securities; the
fees and expenses of qualifying the Underwritten Securities under the
securities laws of the several jurisdictions as provided in this
paragraph and of preparing and printing a Blue Sky Memorandum (including
fees of counsel to the Underwriters); the cost of listing the
Underwritten Securities on the Stock Exchange; and all other costs and
expenses incident to the performance of the Company's obligations under
this Agreement; provided that, except as provided in this paragraph and
in Paragraph 11 hereof, the Underwriters shall pay their own costs and
expenses, including the fees and
<PAGE>
11
expenses of their counsel, any transfer taxes on the Underwritten
Securities which they may sell and the expenses of advertising any
offering of the Underwritten Securities made by the Underwriters;
(l) Until the termination of the offering of the Underwritten
Securities, to timely file all documents, and any amendments to
previously filed documents, required to be filed by the Company pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act;
(m) During the period beginning on the date hereof and continuing
to the Delivery Date, without the consent of the Representative, not to
offer, sell, contract to sell or otherwise dispose of any debt
securities of the Company with maturities longer than one year, other
than the Underwritten Securities to the Underwriters;
(n) (i) Neither the Company nor the Significant Subsidiary shall
have sustained, except as described in or contemplated by the
Registration Statements and the Prospectus, any loss or interference
with its business from fire, explosion, flood or other calamity, whether
or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, or (ii) there shall not have been
any change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and the
Significant Subsidiary, otherwise than as described in or contemplated
by the Prospectus, the effect of which, in any such case described in
clause (i) or (ii), is, in the judgment of the Representative, so
material and adverse as to make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Securities on
the terms and in the manner contemplated in the Prospectus;
(o) Subsequent to the execution and delivery of this Agreement,
(i) no downgrading shall have occurred in the rating accorded the
Company's debt securities by any "nationally recognized statistical
rating organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) of the Rules and Regulations and (ii) no such
organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating
of any of the Company's debt securities; and
(p) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange or the American
Stock Exchange or in the over-the-counter market, or trading in any
securities of the Company on any exchange or in the over-the-counter
market, shall have been suspended or minimum prices shall have been
established on any such exchange or such market by the Commission, by
such exchange or by any other regulatory body or governmental authority
having jurisdiction, (ii) a banking moratorium shall have been declared
by federal or state authorities, (iii) the United States shall have
become engaged in hostilities, there shall have been an escalation in
hostilities involving
<PAGE>
12
the United States or there shall have been a declaration of a national
emergency or war by the United States or (iv) there shall have occurred
such a material adverse change in general economic, political or
financial conditions (or the effect of international conditions on the
financial markets in the United States shall be such) as to make it, in
the judgment of a majority in interest of the several Underwriters,
impracticable or inadvisable to proceed with the public offering or
delivery of the Securities on the terms and in the manner contemplated
in the Prospectus.
8. Indemnification and Contribution. (a) The Company shall indemnify and
hold harmless each Underwriter, its officers and employees and each person, if
any, who controls any Underwriter within the meaning of the Act, from and
against any loss, claim, damage or liability, joint or several, or any action in
respect thereof (including, but not limited to, any loss, claim, damage,
liability or action relating to purchases and sales of Securities), to which
that Underwriter, officer, employee or controlling person may become subject,
under the Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged untrue
statement of a material fact contained (A) in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or in any amendment or supplement
thereto, or (B) in any blue sky application or other document prepared or
executed by the Company (or based upon any written information furnished by the
Company) specifically for the purpose of qualifying any or all of the Securities
under the securities laws of any state or other jurisdiction (any such
application, document or information being hereinafter called a "Blue Sky
Application"), or the omission or alleged omission to state in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or in any amendment or
supplement thereto, or in any Blue Sky Application any material fact required to
be stated therein or necessary to make the statements therein not misleading,
and shall reimburse each Underwriter and each such officer, employee and
controlling person promptly upon demand for any legal or other expenses
reasonably incurred by that Underwriter, officer, employee or controlling person
in connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage, liability or action arises out of, or
is based upon, any untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement
or the Prospectus, or in any such amendment or supplement, or in any Blue Sky
Application in reliance upon and in conformity with the written information
furnished to the Company through the Representative by or on behalf of any
Underwriter specifically for inclusion therein and described in Paragraph 8(e);
and provided further that as to any Preliminary Prospectus this indemnity
agreement shall not inure to the benefit of any Underwriter, its officers or
employees or any person controlling that Underwriter on account of any loss,
claim, damage, liability or action arising from the sale of Securities to any
person by that Underwriter if that Underwriter failed to send or give a copy of
the Prospectus, as the same may be amended or supplemented, to that person
within the time required by the Act, and the untrue statement or alleged untrue
statement of any material fact or omission or alleged omission to state a
material fact in such
<PAGE>
13
Preliminary Prospectus was corrected in the Prospectus, unless such failure
resulted from non-compliance by the Company with Paragraph 7(c). For purposes of
the last proviso to the immediately preceding sentence, the term "Prospectus"
shall not be deemed to include the documents incorporated therein by reference,
and no Underwriter shall be obligated to send or give any supplement or
amendment to any document incorporated by reference in any Preliminary
Prospectus or the Prospectus to any person other than a person to whom such
Underwriter had delivered such incorporated document or documents in response to
a written request therefor. The foregoing indemnity agreement is in addition to
any liability which the Company may otherwise have to any Underwriter or to any
officer, employee or controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company, its officers and employees, each of its directors and
each person, if any, who controls the Company within the meaning of the Act,
from and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof, to which the Company or any such director, officer or
controlling person may become subject, under the Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is based upon,
(i) any untrue statement or alleged untrue statement of a material fact
contained (A) in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or in any amendment or supplement thereto, or (B) in any Blue Sky
Application or (ii) the omission or alleged omission to state in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or in any amendment or
supplement thereto, or in any Blue Sky Application any material fact required to
be stated therein or necessary to make the statements therein not misleading,
but in each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with the written information furnished to the Company through the
Representative by or on behalf of that Underwriter specifically for inclusion
therein and described in Paragraph 8(e), and shall reimburse the Company and any
such director, officer or controlling person for any legal or other expenses
reasonably incurred by the Company or any such director, officer or controlling
person in connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such expenses are
incurred. The foregoing indemnity agreement is in addition to any liability
which any Underwriter may otherwise have to the Company or any such director,
officer or controlling person.
(c) Promptly after receipt by an indemnified party under this
Paragraph 8 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Paragraph 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Paragraph 8 except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this
<PAGE>
14
Paragraph 8. If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume
the defense thereof with counsel satisfactory to the indemnified party. After
notice from the indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, the indemnifying party shall not be
liable to the indemnified party under this Paragraph 8 for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided, however,
that any indemnified party shall have the right to employ separate counsel in
any such action and to participate in the defense thereof but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless (i) the employment thereof has been specifically authorized by the
indemnifying party in writing, (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate counsel or (iii) the
indemnifying party has failed to assume the defense of such action and employ
counsel reasonably satisfactory to the indemnified party, in which case, if such
indemnified party notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such action
on behalf of such indemnified party, it being understood, however, that the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys at any
time for all such indemnified parties, which firm shall be designated in writing
by the Representative, if the indemnified parties under this Paragraph 8 consist
of any Underwriter or any of their respective officers, employees or controlling
persons, or by the Company, if the indemnified parties under this Paragraph
consist of the Company or any of the Company's directors, officers, employees or
controlling persons. No indemnifying party shall (i) without the prior written
consent of the indemnified parties (which consent shall not be unreasonably
withheld), settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising out
of such claim, action, suit or proceeding, or (ii) be liable for any settlement
of any such action effected without its written consent (which consent shall not
be unreasonably withheld), but if settled with its written consent or if there
be a final judgment of the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss of liability by reason of such settlement or judgment.
<PAGE>
15
(d) If the indemnification provided for in this Paragraph 8 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Paragraph 8(a) or 8(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the other from
the offering of the Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and the Underwriters on
the other with respect to the statements or omissions which resulted in such
loss, claim, damage or liability, or action in respect thereof, as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other with respect to such
offering shall be deemed to be in the same proportion as the total net proceeds
from the offering of the Securities purchased under this Agreement (before
deducting expenses) received by the Company, on the one hand, and the total
underwriting discounts and commissions received by the Underwriters with respect
to the shares of the Securities purchased under this Agreement, on the other
hand, bear to the total gross proceeds from the offering of the shares of the
Securities under this Agreement, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault shall be determined by
reference to whether the untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or the Underwriters, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Underwriters agree that it would
not be just and equitable if contributions pursuant to this Paragraph 8(d) were
to be determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation which does
not take into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the loss, claim,
damage or liability, or action in respect thereof, referred to above in this
Paragraph 8(d) shall be deemed to include, for purposes of this Paragraph 8(d),
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Paragraph 8(d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
was offered to the public exceeds the amount of any damages which such
Underwriter has otherwise paid or become liable to pay by reason of any untrue
or alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute as
provided in this Paragraph 8(d) are several in proportion to their respective
underwriting obligations and not joint.
<PAGE>
16
(e) The Underwriters severally confirm that the statements with
respect to the public offering of the Securities set forth on the cover page of,
and under the caption "Underwriting" in, the Prospectus are correct and
constitute the only information furnished in writing to the Company by or on
behalf of the Underwriters specifically for inclusion in the Registration
Statement and the Prospectus.
9. Termination. (a) The obligations of the Underwriters hereunder may be
terminated by the Representative by notice given to and received by the Company
prior to delivery of and payment for the Immediate Delivery Underwritten
Securities if, prior to that time, any of the events described in Paragraphs
7(n), 7(o) or 7(p) hereof shall have occurred or if the Underwriters shall
decline to purchase the Immediate Delivery Underwritten Securities for any
reason permitted under this Agreement.
(b) If this Agreement is terminated pursuant to this Paragraph 9, such
termination shall be without liability of any party to any other party except as
provided in Paragraph 11 hereof, and provided further that Paragraphs 1 and 8
shall survive such termination and remain in full force and effect.
10. Conditions of the Underwriters' Obligations. The respective
obligations of the Underwriters under the Agreement with respect to the
Underwritten Securities are subject to the accuracy, on the date hereof and on
the Delivery Date, of the representations and warranties of the Company
contained herein, to performance by the Company of its obligations hereunder,
and to each of the following additional terms and conditions applicable to the
Underwritten Securities.
(a) At or before the Delivery Date, no stop order suspending the
effectiveness of any Registration Statement nor any order directed to
any document incorporated by reference in any Prospectus shall have been
issued and prior to that time no stop order proceeding shall have been
initiated or threatened by the Commission and no challenge shall have
been made to the accuracy or adequacy of any document incorporated by
reference in any Prospectus; any request of the Commission for inclusion
of additional information in any Registration Statement or any
Prospectus or otherwise shall have been complied with; and after the
date hereof the Company shall not have filed with the Commission any
amendment or supplement to any Registration Statement or any Prospectus
(or any document incorporated by reference therein) that shall have been
disapproved by the Representative.
(b) No Underwriter shall have discovered and disclosed to the
Company on or prior to the Delivery Date that any Registration Statement
or any Prospectus contains an untrue statement of a fact which, in the
opinion of counsel for the Underwriters, is material or omits to state a
fact which, in the opinion of such counsel, is material and is required
to be stated therein or is necessary to make the statements therein not
misleading.
<PAGE>
17
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the Underwritten
Securities and the Indenture and the form of the Registration
Statements, each Prospectus (other than financial statements and other
financial data) and all other legal matters relating to this Agreement
and the transactions contemplated hereby shall be satisfactory in all
respects to counsel for the Underwriters, and the Company shall have
furnished to such counsel all documents and information that such
counsel may reasonably request to enable it to pass upon such matters.
(d) Thomas M. Lemberg, Esq., Senior Vice President, General
Counsel and Secretary of the Company, shall have furnished to the
Representative his opinion addressed to the Underwriters and dated the
Delivery Date to the effect that:
(i) Each of the Company and the Significant Subsidiary has
been duly incorporated and is validly existing and remains a
subsisting corporation under the laws of their respective
jurisdictions of incorporation;
(ii) Each of the Company and the Significant Subsidiary is
duly qualified to do business and is in good standing as a foreign
corporation in all jurisdictions in which its ownership of property
or the conduct of its business requires such qualification (except
where the failure to so qualify would not have a Material Adverse
Effect), and has all power and authority necessary to own its
properties and conduct the business in which it is engaged as
described in the Prospectus;
(iii) No order issued by the Commission directed to any
document incorporated by reference in any Prospectus has been issued
and, to the knowledge of such counsel, no challenge has been made by
the Commission to the accuracy or adequacy of any such document;
(iv) Such counsel does not know of any litigation or any
governmental proceeding pending or threatened against the Company
which would affect the subject matter of this Agreement or is
required to be disclosed in any Prospectus (including the documents
incorporated by reference therein) which is not disclosed and
correctly summarized therein;
(v) To the best of such counsel's knowledge, the Company
is not in violation of its corporate charter or by-laws, or in
default under any material agreement, indenture or instrument; and
(vi) The execution, delivery and performance of this
Agreement and the Delayed Delivery Contracts, if any, and compliance
by the Company with the provisions of the Underwritten Securities
and the Indenture will not constitute a breach of, or result
<PAGE>
18
in the creation or imposition of any lien, charge or encumbrance
upon any of the assets of the Company pursuant to the terms of, or
constitute a default under, any agreement, indenture or instrument
known to such counsel, or result in a violation of the corporate
charter or by-laws of the Company or, to the best of such counsel's
knowledge, any order, rule or regulation of any court or
governmental agency having jurisdiction over the Company or its
property.
In giving such opinion, such counsel need not express any opinion
regarding any order, consent or other authorization or approval which
may be legally required pursuant to any state securities law.
In rendering such opinion, such counsel may: (i) state that his
opinion is limited to matters governed by the federal laws of the United
States of America, the laws of the District of Columbia and the General
Corporation Law of the State of Delaware and that such counsel is not
admitted in the State of Delaware; and (ii) rely (to the extent such
counsel deems proper and specifies in his opinion), as to matters
involving the application of the laws of other jurisdictions upon the
opinion of other counsel of good standing, provided that such other
counsel is satisfactory to counsel for the Underwriters and furnishes a
copy of its opinion to the Representative.
(e) Simpson Thacher & Bartlett, counsel for the Company, shall
have furnished to the Representative its opinion addressed to the
Underwriters and dated the Delivery Date, to the effect that:
(i) The Company and the Significant Subsidiary have been
duly incorporated and are validly existing and in good standing as
corporations under the laws of their respective jurisdictions;
(ii) The Indenture has been duly authorized, executed and
delivered by the Company and duly qualified under the Trust
Indenture Act and, assuming that the Indenture is a valid and
binding agreement of the Trustee, constitutes a valid and legally
binding instrument of the Company enforceable in accordance with its
terms;
(iii) The Immediate Delivery Underwritten Securities have
been duly authorized, executed and issued by the Company and,
assuming due authentication thereof by the Trustee and upon payment
and delivery in accordance with this Agreement, will constitute
valid and legally binding obligations of the Company enforceable in
accordance with their terms and entitled to the benefits of the
Indenture;
(iv) The Delayed Delivery Underwritten Securities, if any,
have been duly authorized and, when duly executed and issued by the
Company and, assuming due
<PAGE>
19
authentication thereof by the Trustee and upon payment and delivery
by the respective purchasers thereof in accordance with the terms of
the related Delayed Delivery Contracts, will constitute valid and
legally binding obligations of the Company, enforceable in
accordance with their terms and entitled to the benefits of the
Indenture;
(v) The Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by the Company and, assuming that
the Delayed Delivery Contracts are the valid and binding agreements
of the purchasers thereunder, are valid and legally binding
obligations of the parties thereto;
(vi) The statements made in each Prospectus under the
caption "Description of Debt Securities" (or a comparable caption),
insofar as they purport to constitute summaries of the documents
referred to therein, constitute accurate summaries of the terms of
such documents in all material respects;
(vii) Each Registration Statement is effective under the
Act and, to the knowledge of such counsel, no stop order suspending
its effectiveness has been issued and no proceeding for that purpose
is pending or threatened by the Commission;
(viii) This Agreement has been duly authorized, executed and
delivered by the Company; and
(ix) The Company is not an "investment company" or an
entity "controlled" by an "investment company," as such terms are
defined in the 1940 Act.
Such counsel may state that the opinions set forth in paragraphs (ii),
(iii), (iv) and (v) above are subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
In rendering such opinion, such counsel may state that its opinion is
limited to matters governed by the federal laws of the United States of America,
the laws of the State of New York and the General Corporation Law of the State
of Delaware and that such counsel is not admitted in the State of Delaware.
Such counsel shall also have furnished to the Representative a written
statement, addressed to the Underwriters and dated the Delivery Date, in form
and substance satisfactory to the Representative, to the effect that (1) such
counsel has acted as counsel to the Company in connection with the preparation
of the Registration Statement (No. 333-_____ ) and the offer and
<PAGE>
20
sale of the Securities (although the Company is also represented by its General
Counsel and, with respect to certain other matters, by other outside counsel);
(2) in the course of the preparation by the Company of the Registration
Statement (333- ) and the Prospectus, such counsel participated in conferences
with certain officers and employees of the Company, with representatives of KPMG
and with counsel to the Company; (3) prior to the Company's filing with the
Commission documents under the Exchange Act, such counsel reviewed such
documents; and (4) based on (a) such counsel's examination of the Registration
Statements, the Prospectus and the documents filed by the Company under the
Exchange Act, (b) such counsel's investigation made in connection with the
preparation of Registration Statement (333- ) and the Prospectus (excluding the
documents filed by the Company under the Exchange Act) and (c) such counsel's
participation in the conferences referred to in clause (2) of this paragraph
above, (i) that such counsel is of the opinion that the Registration Statements,
as of their respective effective dates, and each Prospectus, as of its issue
date, complied as to form in all material respects with the requirements of the
Act and the Trust Indenture Act and the applicable rules and regulations of the
Commission thereunder, and each document incorporated by reference in each
Prospectus as filed under the Exchange Act complied as to form when filed in all
material respects with the requirements of the Exchange Act and the applicable
rules and regulations of the Commission thereunder, except that in each case no
opinion need be expressed as to the financial statements and other financial
data contained or incorporated by reference therein, and (ii) such counsel has
no reason to believe that (I) any Registration Statements, on the dates they
became effective (or, with respect to such Registration Statements, if the
Company has filed an Annual Report on Form 10-K since their effective dates, the
date of the Company's most recent Annual Report on Form 10-K), contained any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading or that the Prospectus, as of its issue date and as of
the Delivery Date, contains any untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading or (II) any document incorporated by reference in the
Prospectus when they were filed with the Commission contained any untrue
statement of a material fact or omitted to state any material fact necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading, except that with respect to each of clauses (I)
and (II) above, such counsel may state that it expresses no belief with respect
to the financial statements or other financial data contained in or incorporated
by reference in the Registration Statements, the Prospectus or documents filed
by the Company under the Exchange Act. The foregoing opinion and statement may
be qualified by a statement to the effect that such counsel has not
independently verified the accuracy, completeness or fairness of the statements
made or included in the Registration Statements, the Prospectus or the documents
filed by the Company under the Exchange Act and takes no responsibility
therefor, except as and to the extent set forth in paragraph (v) above.
<PAGE>
21
(f) The Company shall have furnished to the Representative a
certificate, dated the Delivery Date, of its Chairman of the Board, its
President or a Vice President and its chief financial officer stating
that:
(i) The representations, warranties and agreements of the
Company in Paragraph 1 are true and correct as of the Delivery Date;
the Company has complied with all its agreements contained herein;
and the conditions set forth in Paragraph 10(a) have been fulfilled;
(ii) (A) Except as described in or contemplated by the
Registration Statements and the Prospectus, neither the Company nor
any of its subsidiaries has sustained, any loss or interference with
its business from fire, explosion, flood or other calamity, whether
or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, or (B) there has not been any
change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as described in or contemplated by the
Prospectus; and
(iii) They have carefully examined the Registration
Statements and the Prospectus and, in their opinion (A) the
Registration Statements, as of their respective effective dates, and
the Prospectus, as of its issue date, did not include any untrue
statement of a material fact and did not omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading, and (B) since the effective date
of Registration Statement (No. 333-______), no event has occurred
which should have been set forth in a supplement or amendment to
either of the Registration Statements or the Prospectus.
(g) (i) Neither the Company nor any of its subsidiaries shall have
sustained, except as described in or contemplated by the Registration
Statements and the Prospectus, any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, or there shall not have been any change, or any
development involving a prospective change, in or affecting the general
affairs, management, financial position, stockholders' equity or results
of operations of the Company and its subsidiaries, otherwise than as set
forth or contemplated in the Prospectus, the effect of which, in any
such case described in clause (i) or (ii), is, in the judgment of the
Representative, so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Securities on the terms and in the manner contemplated in the
Prospectus.
<PAGE>
22
(h) If Underwritten Securities in bearer form are being delivered
by the Company on the Delivery Date in a jurisdiction other than the
United States, the Company shall have furnished to the Representative
such legal opinion or opinions as the Representative may reasonably
request addressed to the Underwriters and dated the Delivery Date, with
respect to matters relating to the offering, sale and delivery of the
Underwritten Securities in such jurisdiction.
(i) The Company shall have furnished to the Representative (i) a
letter of KPMG, addressed to the Underwriters and dated the date hereof
of the type described in the American Institute of Certified Public
Accountants' Statement on Auditing Standards No. 72 and covering such
specified financial statement items as counsel for the Underwriters may
reasonably have requested and (ii) a letter of KPMG, addressed to the
Underwriters and dated the Delivery Date, stating, as of the date of
such letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given in the Prospectus, as of a date not more than five
days prior to the date of such letter), the conclusions and findings of
such firm with respect to the financial information and other matters
covered by its letter referred to in subclause (i) above, confirming in
all material respects the conclusions and findings set forth in such
prior letter.
(j) The Underwritten Securities shall have been accepted for
listing on the Stock Exchange (if any), subject to official notice of
issuance.
(k) At the Delivery Date, the Underwritten Securities shall be
rated at least "Baa3" by Moody's Investor's Service Inc. and "BBB-" by
Standard & Poor's Ratings Group, a division of McGraw-Hill, Inc., and
the Company shall have delivered to the Representative a letter dated
the Delivery Date, from each such rating agency, or other evidence
satisfactory to the Representative, confirming that the Underwritten
Securities have such ratings. Subsequent to the execution and delivery
of this Agreement, no downgrading shall have occurred in the rating
accorded the Company's debt securities by any "nationally recognized
statistical rating organization", as that term is defined by the
Commission for purposes of Rule 436(g)(2) of the Rules and Regulations,
and no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating
of any of the Company's debt securities.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance satisfactory to
counsel for the Underwriters.
11. Reimbursement of Underwriters' Expenses. If the Company shall fail
to tender the Immediate Delivery Underwritten Securities for delivery to the
Underwriters for any reason permitted under this Agreement, or if the
Underwriters shall decline to purchase the Immediate
<PAGE>
23
Delivery Underwritten Securities for any reason permitted under this Agreement
(other than pursuant to Paragraph 5 hereof), the Company shall reimburse the
Underwriters for reasonable fees and expenses of their counsel and for such
other out-of-pocket expenses as shall have been incurred by them in connection
with this Agreement and the proposed purchase of Immediate Delivery Underwritten
Securities and the solicitation of any purchases of the Delayed Delivery
Underwritten Securities, and upon demand the Company shall pay the full amount
thereof to the Representative. If this Agreement is terminated pursuant to
Paragraph 5 hereof by reason of the default of one or more Underwriters, the
Company shall not be obligated to reimburse any defaulting Underwriter on
account of those expenses.
12. Notices, etc. The Company shall be entitled to act and rely upon
any request, consent, notice or agreement by, or on behalf of, the
Representative. Any notice by the Company to the Underwriters shall be
sufficient if given in writing or by telegraph addressed to the Representative
at its address set forth in Schedule I hereto, and any notice by the
Underwriters to the Company shall be sufficient if given in writing or by
facsimile addressed to the Company at 784 Memorial Drive, Cambridge,
Massachusetts 02139 (Facsimile Number: (781) 386-3228), Attention of the
Treasurer.
13. Persons Entitled to the Benefit of this Agreement. This Agreement
shall be binding upon the Underwriters, the Company, and their respective
successors. This Agreement and the terms and provisions hereof are for the sole
benefit of only those persons, except that (a) the representations, warranties,
indemnities and agreements of the Company contained in this Agreement shall also
be deemed to be for the benefit of the person or persons, if any, who control
any Underwriter within the meaning of Section 15 of the Act, and (b) the
indemnity agreement of the Underwriters contained in Paragraph 8 hereof shall be
deemed to be for the benefit of directors of the Company, officers of the
Company who have signed any Registration Statement and any person controlling
the Company. Nothing in this Agreement is intended or shall be construed to give
any person, other than the persons referred to in this Paragraph, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision contained herein.
14. Certain Definitions. For purposes of this Agreement, (a) "business
day" means any day on which the New York Stock Exchange, Inc. is open for
trading and (b) "subsidiary" has the meaning set forth in Rule 405 of the Rules
and Regulations.
15. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of New York.
16. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
<PAGE>
24
17. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
[The rest of this page is left blank intentionally; the signature page follows.]
<PAGE>
25
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this Agreement shall represent a binding agreement among the Company and the
several Underwriters.
Very truly yours,
POLAROID CORPORATION
By
-------------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed
and accepted as of the date first above
written.
[ ]
By
-----------------------------
Name:
Title:
For itself and as Representative of the other
Underwriters named in Schedule II to the foregoing
Agreement.
<PAGE>
SCHEDULE I
Underwriting Agreement dated , 1998.
Registration Statement Nos. 333-0791 and 333- .
Representatives and Addresses:
Underwritten Securities
Designation:
Principal amount:
Indenture:
Date of Maturity:
Interest Rate:
Purchase Price:
Redemption Provisions:
Authorized Denominations:
Stock Exchange Listing:
Delivery Date, Time and Location:
<PAGE>
SCHEDULE II
Principal
Amount of
Underwritten
Name of Underwriter Securities
- ------------------------------------------------------------- ----------------
............................................................. $
............................................................. $
Total ---------
$
=========
<PAGE>
EXHIBIT A
$
POLAROID CORPORATION
DEBT SECURITIES
DELAYED DELIVERY CONTRACT
[DATE]
POLAROID CORPORATION
784 Memorial Drive
Cambridge, Massachusetts 02139
Dear Sirs:
The undersigned hereby agrees to purchase from Polaroid Corporation,
Inc., a Delaware corporation ("Company"), and the Company hereby agrees to sell
to the undersigned,
$
principal amount of the Company's above-captioned securities ("Securities"),
offered by the Company's prospectus dated ________, 199 , as supplemented by the
prospectus supplement dated ________, 199 (collectively, the "Prospectus"),
receipt of a copy of which is hereby acknowledged, at a purchase price of ___%
of the principal amount thereof plus accrued interest from , 199 to the Delivery
Date (as defined in the next paragraph) and on the further terms and conditions
set forth in this Contract.
Payment for and delivery of the Securities to be purchased by the
undersigned shall be made on ________, 199 , herein called the "Delivery Date".
At 10:00 A.M., New York time, on the Delivery Date, the Securities to be
purchased by the undersigned hereunder will be delivered by the Company to the
undersigned, and the undersigned will accept delivery of such Securities and
will make payment to the Company of the purchase price therefor, at the office
of ________. Payment will be certified or official bank check payable in
next-day funds settled through the New York Clearing House to or upon the order
of the Company.
This Contract will terminate and be of no further force and effect after
________, 199 , unless (i) on or before such date it shall have been executed
and delivered by both parties hereto or (ii) the Company shall have sold to the
Underwriters named in the Prospectus the Immediate Delivery Underwritten
Securities (as defined in the Underwriting Agreement referred to in the
Prospectus) and the Company shall have mailed or delivered to the undersigned at
its address set forth below a notice to that effect, stating the date of the
occurrence thereof, accompanied by copies of the opinion of counsel for the
Company delivered to such Underwriters pursuant to Paragraph 10(d) of the
Underwriting Agreement.
<PAGE>
The obligation of the undersigned to accept delivery and make payment
for the Securities on the Delivery Date will be subject to the condition that
the Securities shall not, on the Delivery Date, be an investment prohibited by
the laws of the jurisdiction to which the undersigned is subject, the
undersigned hereby representing that such an investment is not so prohibited on
the date hereof. This Contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors but will not be assignable by
either party hereto without the written consent of the other.
It is understood that acceptance of any Delayed Delivery Contract (as
defined in said Underwriting Agreement) is in the Company's sole discretion and,
without limiting the foregoing, need not be on a first-come, first-served basis.
If this Contract is acceptable to the Company, it is requested that the Company
sign the form of acceptance below and mail or deliver one of the counterparts
hereof to the undersigned at its address set forth below. This will become a
binding contract between the Company and the undersigned when such counterpart
is so mailed or delivered.
Very truly yours,
By
--------------------------
Name:
Title:
Address:
Accepted as of , 199 .
POLAROID CORPORATION
By
---------------------
Name:
Title:
[LETTERHEAD OF SIMPSON THACHER & BARTLETT]
(212) 455-2000
November 20, 1998
POLAROID CORPORATION
549 Technology Square
Cambridge, Massachusetts 02139
Ladies and Gentlemen:
We have acted as counsel to Polaroid Corporation, a Delaware corporation
(the "Company"), in connection with (i) Post-Effective Amendment No. 1
("Post-Effective Amendment No. 1") to the Registration Statement on Form S-3
(File No. 333-0791) (the "Prior Registration Statement") filed by the Company
under the Securities Act of 1933, as amended (the "Act"), relating to debt
securities (the "Debt Securities") of the Company, of which an aggregate
principal amount of $200,000,000 of Debt Securities (or the equivalent thereof
in one or more foreign currencies or a composite of currencies) remain eligible
to be issued and sold thereunder, and (ii) the Registration Statement on Form
S-3 (the "Registration Statement") filed by the Company under the Act on the
date hereof relating to Debt Securities of the Company in an aggregate principal
amount of $300,000,000 (or the equivalent thereof in one or more foreign
currencies or a composite of currencies). The Debt Securities will be issued
under an Indenture (the "Indenture") dated as of January 9, 1997 by and between
the Company and State Street Bank and Trust Company, as trustee (the "Trustee").
We have examined the Prior Registration Statement, Post-Effective
Amendment No. 1, the Registration Statement and the Indenture, which has been
filed as an exhibit to the Prior Registration Statement and the Registration
Statement. In addition, we have examined, and have relied as to matters of fact
upon originals or copies, certified or
<PAGE>
POLAROID CORPORATION -2- November 20, 1998
otherwise identified to our satisfaction, of such corporate records, agreements,
documents and other instruments and such certificates or comparable documents of
public officials and of officers and representatives of the Company, and have
made such other and further investigations, as we have deemed relevant and
necessary as a basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of such latter documents. In addition, we have
assumed that prior to the issuance and sale of Debt Securities covered by the
Prior Registration Statement and the Registration Statement: (i) a prospectus
supplement (the "Prospectus Supplement") supplementing the prospectus (the
"Prospectus") forming a part of the Prior Registration Statement and the
Registration Statement will have been prepared and filed with the Commission
describing the Debt Securities pursuant to Rule 424(b); (ii) the Debt Securities
issued will be issued and sold in compliance with applicable federal and state
securities laws and solely in the manner contemplated by the Prior Registration
Statement, the Registration Statement and the Prospectus Supplement; and (iii) a
definitive purchase, underwriting or similar agreement with respect to the Debt
Securities will have been duly authorized and validly executed and delivered by
each of the Company and the other parties thereto.
Based upon the foregoing, and subject to the qualifications and
limitations stated herein, we are of the opinion that, when (i) the Board of
Directors of the Company have taken all necessary corporate action to approve
the terms of the offering of such Debt Securities and related matters, and (ii)
such Debt Securities have been duly executed, authenticated, issued and
delivered in accordance with the provisions of the Indenture and the applicable
definitive purchase, underwriting or similar agreement approved by the Board of
Directors of the Company, and upon payment of the consideration therefor
provided for therein, such Debt Securities will be valid and legally binding
obligations of the Company.
<PAGE>
POLAROID CORPORATION -3- November 20, 1998
Our opinions set forth in the preceding paragraphs is subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing.
We are members of the Bar of the State of New York, and we do not express
any opinion herein concerning any law other than the law of the State of New
York, the federal law of the United States and the Delaware General Corporation
Law.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement and to the use of our name under the caption "Legal
Opinions" in the Prospectus.
Very truly yours,
/S/ SIMPSON THACHER & BARTLETT
SIMPSON THACHER & BARTLETT
Exhibit 23.1
------------
Consent of Independent Auditors
-------------------------------
The Board of Directors
Polaroid Corporation:
We consent to the incorporation by reference in the Registration Statement on
Form S-3 dated the date hereof and the Registration Statement on Form S-3
(File No. 333-0791), as amended as of the date hereof, of Polaroid Corporation
of our report dated January 27, 1998, relating to the consolidated balance
sheets of Polaroid Corporation and subsidiary companies as of December 31, 1997
and 1996, and the related consolidated statements of earnings, cash flows, and
changes in common stockholders' equity, and related schedules for each of the
years in the three-year period ended December 31, 1997, which report appears in
the Annual Report on Form 10-K for the fiscal year ended December 31, 1997 of
Polaroid Corporation and to the reference to our firm under the heading
"Experts" in the Prospectus.
Our report refers to a change in 1997 in the method of accounting for
depreciation.
/s/ KPMG PEAT MARWICK LLP
Boston, Massachusetts
November 20, 1998
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility
of a Trustee Pursuant to Section 305(b)(2) X_
STATE STREET BANK AND TRUST COMPANY
(Exact name of trustee as specified in its charter)
Massachusetts 04-1867445
(Jurisdiction of incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification No.)
225 Franklin Street, Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
John R. Towers, Esq. Senior Vice President and Corporate Secretary
225 Franklin Street, Boston, Massachusetts 02110
(617)654-3253
(Name, address and telephone number of agent for service)
---------------------
Polaroid Corporation
--------------------
(Exact name of obligor as specified in its charter)
Delaware 04-1734655
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
784 Memorial Drive
Cambridge, MA 02139
(617) 386-2000
(Address of principal executive offices) (Zip Code)
--------------------
Debt Securities
"Issued Pursuant to a Delayed Offering Registration Statement"
(Title of indenture securities)
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervisory authority to
which it is subject.
Department of Banking and Insurance of The Commonwealth of
Massachusetts, 100 Cambridge Street, Boston, Massachusetts.
Board of Governors of the Federal Reserve System,
Washington, D.C., Federal Deposit Insurance Corporation,
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust
powers.
Item 2. Affiliations with Obligor.
If the Obligor is an affiliate of the trustee, describe each such
affiliation.
The obligor is not an affiliate of the trustee or of its
parent, State Street Boston Corporation.
(See note on page 2.)
Item 3. through Item 15. Not applicable.
Item 16. List of Exhibits.
List below all exhibits filed as part of this statement of
eligibility.
1. A copy of the articles of association of the trustee as now in
effect.
A copy of the Articles of Association of the trustee, as now
in effect, is on file with the Securities and Exchange
Commission as Exhibit 1 to Amendment No. 1 to the Statement
of Eligibility and Qualification of Trustee (Form T-1) filed
with the Registration Statement of Morse Shoe, Inc. (File
No. 22-17940) and is incorporated herein by reference
thereto.
2. A copy of the certificate of authority of the trustee to commence
business, if not contained in the articles of association.
A copy of a Statement from the Commissioner of Banks of
Massachusetts that no certificate of authority for the
trustee to commence business was necessary or issued is on
file with the Securities and Exchange Commission as Exhibit
2 to Amendment No. 1 to the Statement of Eligibility and
Qualification of Trustee (Form T-1) filed with the
Registration Statement of Morse Shoe, Inc. (File No.
22-17940) and is incorporated herein by reference thereto.
3. A copy of the authorization of the trustee to exercise corporate
trust powers, if such authorization is not contained in the documents
specified in paragraph (1) or (2), above.
A copy of the authorization of the trustee to exercise
corporate trust powers is on file with the Securities and
Exchange Commission as Exhibit 3 to Amendment No. 1 to the
Statement of Eligibility and Qualification of Trustee (Form
T-1) filed with the Registration Statement of Morse Shoe,
Inc. (File No. 22-17940) and is incorporated herein by
reference thereto.
4. A copy of the existing by-laws of the trustee, or instruments
corresponding thereto.
A copy of the by-laws of the trustee, as now in effect, is
on file with the Securities and Exchange Commission as
Exhibit 4 to the Statement of Eligibility and Qualification
of Trustee (Form T-1) filed with the Registration Statement
of Eastern Edison Company (File No. 33-37823) and is
incorporated herein by reference thereto.
1
<PAGE>
5. A copy of each indenture referred to in Item 4. if the obligor is
in default.
Not applicable.
6. The consents of United States institutional trustees required by
Section 321(b) of the Act.
The consent of the trustee required by Section 321(b) of the
Act is annexed hereto as Exhibit 6 and made a part hereof.
7. A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or examining
authority.
A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority is annexed hereto as
Exhibit 7 and made a part hereof.
NOTES
In answering any item of this Statement of Eligibility and
Qualification which relates to matters peculiarly within the knowledge of the
obligor or any underwriter for the obligor, the trustee has relied upon
information furnished to it by the obligor and the underwriters, and the trustee
disclaims responsibility for the accuracy or completeness of such information.
The answer furnished to Item 2. of this statement will be amended, if
necessary, to reflect any facts which differ from those stated and which would
have been required to be stated if known at the date hereof.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, State Street Bank and Trust Company, a corporation
organized and existing under the laws of The Commonwealth of Massachusetts, has
duly caused this statement of eligibility and qualification to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of Boston
and The Commonwealth of Massachusetts, on the 19th day of November, 1998.
STATE STREET BANK AND TRUST COMPANY
By: /s/ Ruth A. Smith
------------------------------------
Ruth A. Smith
Vice President
2
<PAGE>
EXHIBIT 6
CONSENT OF THE TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture
Act of 1939, as amended, in connection with the proposed issuance pursuant to a
delayed offering registration statement by Polaroid Corporation, of its Debt
Securities we hereby consent that reports of examination by Federal, State,
Territorial or District authorities may be furnished by such authorities to the
Securities and Exchange Commission upon request therefor.
STATE STREET BANK AND TRUST COMPANY
By: /s/ Ruth A. Smith
----------------------------------------
Ruth A. Smith
Vice President
Dated: November 19, 1998
3
<PAGE>
EXHIBIT 7
Consolidated Report of Condition of State Street Bank and Trust Company,
Massachusetts and foreign and domestic subsidiaries, a state banking institution
organized and operating under the banking laws of this commonwealth and a member
of the Federal Reserve System, at the close of business June 30, 1998, published
in accordance with a call made by the Federal Reserve Bank of this District
pursuant to the provisions of the Federal Reserve Act and in accordance with a
call made by the Commissioner of Banks under General Laws, Chapter 172, Section
22(a).
<TABLE>
<CAPTION>
Thousands of
ASSETS Dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin .............................. 1,553,703
Interest-bearing balances ....................................................... 12,440,716
Securities .................................................................................. 9,436,138
Federal funds sold and securities purchased
under agreements to resell in domestic offices
of the bank and its Edge subsidiary ............................................. 8,785,353
Loans and lease financing receivables:
Loans and leases, net of unearned income ......................... 6,633,608
Allowance for loan and lease losses .............................. 92,999
Allocated transfer risk reserve................................... 0
Loans and leases, net of unearned income and allowances ......................... 6,540,609
Assets held in trading accounts ............................................................. 1,267,679
Premises and fixed assets ................................................................... 491,928
Other real estate owned ..................................................................... 100
Investments in unconsolidated subsidiaries .................................................. 1,278
Customers' liability to this bank on acceptances outstanding ................................ 68,312
Intangible assets ........................................................................... 231,294
Other assets................................................................................. 1,667,282
------------
Total assets ................................................................................ 42,484,392
============
LIABILITIES
Deposits:
In domestic offices ............................................................. 12,553,371
Noninterest-bearing ................................... 10,204,405
Interest-bearing ...................................... 2,348,966
In foreign offices and Edge subsidiary .......................................... 16,961,571
Noninterest-bearing ................................... 154,792
Interest-bearing ...................................... 16,806,779
Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of
the bank and of its Edge subsidiary ............................................. 8,182,794
Demand notes issued to the U.S. Treasury and Trading Liabilities ............................ 0
Trading liabilities.......................................................................... 883,096
Other borrowed money ........................................................................ 361,141
Subordinated notes and debentures ........................................................... 0
Bank's liability on acceptances executed and outstanding .................................... 68,289
Other liabilities ........................................................................... 1,017,284
Total liabilities ........................................................................... 40,027,546
------------
EQUITY CAPITAL
Perpetual preferred stock and related surplus................................................ 0
Common stock ................................................................................ 29,931
Surplus ..................................................................................... 455,288
Undivided profits and capital reserves/Net unrealized holding gains (losses) ................ 1,964,924
Net unrealized holding gains (losses) on available-for-sale securities....................... 15,557
Cumulative foreign currency translation adjustments ........................................ (8,854)
------------
Total equity capital ........................................................................ 2,456,846
------------
Total liabilities and equity capital ........................................................ 42,484,392
------------
</TABLE>
4
<PAGE>
I, Rex S. Schuette, Senior Vice President and Comptroller of the above named
bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
/s/ Rex S. Schuette
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
/s/ David A. Spina
/s/ Marshall N. Carter
/s/ Truman S. Casner
5
