<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 29, 1998
REGISTRATION NO. 333-62105
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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PREMARK INTERNATIONAL, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 36-3461320
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION)
1717 DEERFIELD ROAD, DEERFIELD, ILLINOIS 60015, (847) 405-6000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
JOHN M. COSTIGAN, ESQ.
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
PREMARK INTERNATIONAL, INC.
1717 DEERFIELD ROAD
DEERFIELD, ILLINOIS 60015
(847) 405-6000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
--------------
COPIES TO:
STEVEN SUTHERLAND ROBERT E. BUCKHOLZ, JR.
SIDLEY & AUSTIN SULLIVAN & CROMWELL
ONE FIRST NATIONAL PLAZA 125 BROAD STREET
CHICAGO, IL 60603 NEW YORK, NY 10004
(312) 853-7000 (212) 558-4000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after this Registration Statement becomes effective.
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, 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 number of the earlier effective registration statement for the
same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED PROPOSED
TITLE OF EACH CLASS OF AMOUNT MAXIMUM MAXIMUM AMOUNT OF
SECURITIES TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED PER SHARE OFFERING PRICE FEE
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<S> <C> <C> <C> <C>
Debt Securities......... $150,000,000(1)(3) 100%(2) $150,000,000 $44,250(3)
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</TABLE>
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(1) Or its equivalent in any other currency or units based on or relating to
foreign currencies. If any Debt Securities are issued at an original issue
discount, such greater amount as shall result in an aggregate offering
price to the public which shall not exceed the amount set forth under
Proposed Maximum Aggregate Offering Price.
(2) Estimated solely for purposes of calculating the Registration Fee.
(3) Debt securities in the amount of $100,000,000 registered under
Registration Statement on Form S-3 (Registration No. 33-35137), for which
a registration fee of $25,000 was paid, are being carried forward to this
Registration Statement.
PURSUANT TO THE PROVISIONS OF RULE 429 OF THE RULES AND REGULATIONS OF THE
SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, THE FORM OF PROSPECTUS SET FORTH HEREIN ALSO RELATES TO THE
REGISTRANT'S REGISTRATION STATEMENT ON FORM S-3 NO. 33-35137. THIS
REGISTRATION STATEMENT ALSO CONSTITUTES POST-EFFECTIVE AMENDMENT NO. 1 WITH
RESPECT TO THE REGISTRANT'S REGISTRATION STATEMENT ON FORM S-3 NO. 33-35137.
--------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
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<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SUPPLEMENT SHALL NOT CONSTITUTE AN OFFER +
+TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF +
+THESE SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD +
+BE UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS +
+OF ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED OCTOBER 29, 1998
PROSPECTUS
PREMARK INTERNATIONAL, INC.
DEBT SECURITIES
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Premark International, Inc. (the "Company"), may from time to time offer
debentures, notes and/or other unsecured evidences of indebtedness
(collectively, the "Debt Securities") at an aggregate initial offering price
not to exceed U.S. $250,000,000 or its equivalent in any other currency or
units based on or relating to foreign currencies. The Debt Securities may be
offered in one or more series in amounts, at prices and on terms to be
determined at the time of sale. When a particular series of Debt Securities
(the "Offered Securities") are offered, a supplement to this Prospectus (a
"Prospectus Supplement") will be delivered with this Prospectus setting forth
the terms of such Offered Securities, including, if applicable, the specific
designation, aggregate principal amount, denominations, currency, purchase
price, maturity, rate (which may be fixed or variable) and time of payment of
interest, redemption terms, and any listing on a securities exchange of the
Offered Securities.
The Debt Securities may be issued in registered form or bearer form with
coupons attached or both. In addition, all or a portion of the Debt Securities
of any series may be issuable in permanent registered global form which will be
exchangeable only under certain conditions into definitive Debt Securities.
The Company may sell Debt Securities to or through underwriters, and also may
sell Debt Securities to other purchasers directly or through agents. The
accompanying Prospectus Supplement sets forth the names of any underwriters or
agents involved in the sale of the Offered Debt Securities, the principal
amounts, if any, to be purchased by the underwriters and the compensation of
such underwriters or agents.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
-----------
The date of this Prospectus is October , 1998.
<PAGE>
NO PERSON IS AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION NOT CONTAINED OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS
OR ANY PROSPECTUS SUPPLEMENT, AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY OR ANY UNDERWRITER OR AGENT. NEITHER THIS PROSPECTUS NOR ANY
PROSPECTUS SUPPLEMENT CONSTITUTES AN OFFER TO SELL OR A SOLICITATION OF AN
OFFER TO BUY ANY SECURITIES OTHER THAN THE SECURITIES OFFERED HEREBY OR AN
OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY TO ANY PERSON IN ANY
JURISDICTION IN WHICH IT IS UNLAWFUL TO MAKE ANY SUCH OFFER OR SOLICITATION TO
SUCH PERSON. NEITHER THE DELIVERY OF THIS PROSPECTUS OR ANY ACCOMPANYING
PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREBY SHALL UNDER ANY CIRCUMSTANCE
IMPLY THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY DATE
SUBSEQUENT TO THE DATE HEREOF.
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TABLE OF CONTENTS
<TABLE>
<S> <C>
Available Information....................................................... i
Incorporation of Certain Documents by Reference............................. ii
The Company................................................................. 1
Ratio of Earnings to Fixed Charges.......................................... 2
Use of Proceeds............................................................. 2
Description of Debt Securities.............................................. 2
Plan of Distribution........................................................ 9
Legal Opinions.............................................................. 10
Experts..................................................................... 11
Note Regarding Forward Looking Statements................................... 11
</TABLE>
AVAILABLE INFORMATION
The Company is subject to the information requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports, proxy statements, information statements and other
information with the Securities and Exchange Commission (the "Commission").
Copies of reports, proxy statements and other information concerning the
Company may be inspected and copied at the public reference facilities
maintained by the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549
and at the following Regional Offices of the Commission: Citicorp Center, 500
West Madison Street, Suite 1400, Chicago, Illinois 60661 and 7 World Trade
Center, 13th Floor, New York, New York 10048. Copies can be obtained by mail
from the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549 at prescribed rates. Such material may also be
inspected on the Internet at the Commission's website (http://www.sec.gov). In
addition, reports, proxy materials, information statements and other
information concerning the Company can also be inspected at the offices of the
New York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005 and
the Pacific Stock Exchange, Inc., 301 Pine Street, San Francisco, California
94104, on which exchanges the Company's Common Stock is listed.
The Company has filed with the Commission a registration statement on Form
S-3 (the "Registration Statement") (which term encompasses any amendments
thereto) under the Securities Act of 1933, as amended (the "Securities Act")
with respect to the Debt Securities. This Prospectus does not contain all of
the information set forth in such Registration Statement, certain parts of
which are omitted in accordance with the rules and regulations of the
Commission. Reference is made to such Registration Statement and to the
exhibits thereto for further information with respect to the Company and the
Debt Securities. Statements made in this Prospectus as to the contents of any
documents referred to are not necessarily complete, and in each instance
reference is made to such exhibit for a more complete description and each
such statement is qualified in its entirety by such reference.
i
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by the Company are
incorporated herein by reference:
(1) The Company's Annual Report on Form 10-K for the fiscal year ended
December 27, 1997, as amended by Form 10-K/A filed on March 23, 1998; and
(2) The Company's Quarterly Reports on Form 10-Q for the fiscal quarters
ended March 28, 1998 and June 27, 1998.
The Company's Commission File No. is 1-9256.
All other documents filed by the Company pursuant to Section 13(a), 13(c),
14 and 15(d) of the Exchange Act after the date of this Prospectus and prior
to the termination of the offering made by this Prospectus shall be deemed to
be incorporated by reference in this Prospectus from the date of filing of
such documents. Any statement contained herein or in a document incorporated
by reference herein shall be deemed to be modified or superseded for purposes
of this Prospectus to the extent that a statement contained in any
subsequently filed document which also is, or is deemed to be, incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
Upon request, the Company will furnish without charge to each person,
including any beneficial owners, to whom this Prospectus is delivered a copy
of any or all of the documents described above (without exhibits other than
exhibits specifically incorporated by reference into such documents). Requests
should be directed to: Corporate Secretary's Office, Premark International,
Inc., 1717 Deerfield Road, Deerfield, Illinois 60015; telephone (847) 405-
6000.
ii
<PAGE>
THE COMPANY
The Company is a multinational commercial and consumer products company with
three principal business segments: the Food Equipment Group, the Decorative
Products Group and the Consumer Products Group. The Company is a Delaware
corporation that was organized on August 29, 1986, in connection with the
corporate reorganization of Kraft, Inc. ("Kraft"). On October 31, 1986, the
Company became a publicly held company through the pro rata distribution by
Kraft to its shareholders of all the outstanding shares of common stock of the
Company. On May 31, 1996, the Company distributed on a pro rata basis to its
shareholders all of the issued and outstanding stock of Tupperware
Corporation, a direct seller of consumer products.
The Food Equipment Group is engaged in the design, manufacture, distribution
and service of commercial equipment for food preparation, cooking, baking,
warewashing, weighing, wrapping and refrigeration. The Food Equipment Group's
core products include warewashing equipment; food preparation machines, such
as mixers, slicers, cutters, meat saws and grinders; weighing and wrapping
equipment and related systems; baking and cooking equipment, such as ovens,
ranges, fryers, griddles and broilers; and refrigeration equipment. Products
are marketed under trademarks including Hobart, Stero, Vulcan-Hart, Wolf,
Tasselli, Adamatic, Still, Foster, Inoxyform, Ungermann, Baxter, Somat,
Wittco, Traulsen, Elettrobar, GBG, Sencotel, Colged and Promag. Food equipment
products are sold to the retail food industry, including supermarket chains,
independent grocers, delicatessens, convenience and other food stores, and to
the foodservice industry, including independent restaurants, restaurant
chains, hospitals, healthcare facilities, correctional facilities, schools,
bakeries, hotels, resorts and airlines. Food equipment products are
distributed through company-owned operations or through dealers, agents and
distributors. The Food Equipment Group contributed 53%, 55% and 56% to the
Company's sales for fiscal years 1997, 1996 and 1995, respectively.
The Decorative Products Group is composed of two businesses: Wilsonart and
Florida Tile. Wilsonart designs, manufactures and distributes decorative
surfacing products, primarily high pressure decorative laminates for numerous
interior surfacing applications such as cabinetry, countertops, and flooring,
and specialty-grade laminates, including chemical-resistant, wear-resistant
and fire-retardant laminates. In addition to laminate products, Wilsonart
sells solid surfacing products, panels and sinks, contact adhesives,
decorative metal surfacing products, wood and laminate-clad decorative edge
moldings for countertops and furniture, and threshold transitions for use with
its flooring products. Wilsonart products are sold through wholesale building
material distributors, original equipment manufacturers and dealers. Florida
Tile manufactures glazed ceramic wall and floor tile products for residential
and commercial uses, and unglazed porcelain mosaic tile primarily for
commercial applications. Florida Tile products are sold through company-owned
and independent distributors. The Decorative Products Group contributed 33%,
32% and 31% of the sales of the Company's businesses for the fiscal years
1997, 1996 and 1995, respectively.
The Consumer Products Group is composed of two businesses: West Bend and
Precor. West Bend designs, manufactures and sells small electric appliances,
such as bread makers, electric skillets, slow cookers, woks, corn poppers,
beverage makers, mixers, electronic timers, high-quality stainless steel
cookware, and a line of household water distillers. West Bend small appliances
are sold directly to mass merchandisers, department stores, hardware stores,
warehouse clubs and catalog showrooms. West Bend's stainless steel cookware
and household water distillers are sold to consumers by independent
distributors through dinner parties and by other direct sales methods. Precor
manufactures aerobic physical fitness equipment, such as treadmills,
elliptical crosstrainers, low-impact climbers and exercise cycles. Precor
equipment for home use is sold primarily through specialty fitness equipment
retail stores. Precor commercial equipment is sold through specialty fitness
dealers and directly to major fitness clubs. The Consumer Products Group
contributed 14%, 13% and 13% of the sales of the Company's business for the
fiscal years 1997, 1996 and 1995, respectively.
RECENT DEVELOPMENTS
On October 19, 1998, the Company announced that the Company's net income for
the third quarter ended September 26, 1998 rose 14.1% to $38.7 million, or
$0.60 per share, from $33.9 million or $0.52 per share, in the corresponding
period in 1997. Sales advanced 16% to a record $698 million.
<PAGE>
Wilsonart's continued outstanding performance, as well as a significant
increase in the Food Equipment Group's U.S. operations, led the advance in
quarterly net income. These factors, combined with continued improvement in
the European results of the Food Equipment Group and an increase at West Bend,
more than offset the impact of weak Asian Pacific markets and a loss at
Florida Tile due to lower production levels.
For the first nine months of 1998, the Company's net income of $94.9
million, or $1.47 per diluted common share, increased 14.3% from last year's
$83.0 million, or $1.27 per diluted common share, as sales increased 14% to a
record $2.0 billion.
Separately, the Company announced that it acquired certain operating assets
from Direct Worktops Limited. Located in northeastern England, Direct Worktops
is a manufacturer and distributor of high-pressure laminate countertops in the
United Kingdom.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the Company's consolidated ratio of earnings
to fixed charges for the periods shown.
<TABLE>
<CAPTION>
26 WEEKS ENDED FISCAL YEAR ENDED
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JUNE 27, JUNE 28, DECEMBER 27, DECEMBER 28, DECEMBER 30, DECEMBER 31, DECEMBER 25,
1998 1997 1997 1996 1995 1994 1993
-------- -------- ------------ ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to
fixed charges.......... 8.1 7.8 8.1 5.0* 4.1 4.5 3.7
</TABLE>
*For the fiscal year ended December 28, 1996, pre-tax income was reduced by
$43.1 million related to the loss on the sale of the Company's Hartco
subsidiary. Excluding this charge, the ratio would have been 6.5.
Earnings available for fixed charges represent earnings before income taxes
and fixed charges (excluding capitalized interest). Fixed charges represent
interest incurred plus that portion of rental expense deemed to be the
equivalent of interest.
USE OF PROCEEDS
Except as otherwise set forth in the applicable Prospectus Supplement, the
Company intends to use the net proceeds from the sale of the Debt Securities
for general corporate purposes.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will be issued in one or more series under an Indenture
(the "Indenture") between the Company and The First National Bank of Chicago,
as Trustee (the "Trustee"), the form of which is filed as an exhibit to the
Registration Statement of which this Prospectus is a part. The following
statements with respect to the Indenture and the Securities (as hereinafter
defined) are brief summaries of the material provisions of the Indenture and
do not purport to be complete; such statements are subject to the detailed
referenced provisions of the Indenture, including the definition of
capitalized terms used under this caption. Whenever particular sections or
defined terms of the Indenture are referred to, such sections or defined terms
are incorporated herein by reference as a part of the statement made, and the
statement is qualified in its entirety by such reference. The term
"Securities", as used under this caption, refers to all securities issued
under the Indenture, including the Debt Securities.
GENERAL
The Indenture does not limit the aggregate principal amount of Securities
(which may include debentures, notes and other evidences of indebtedness)
which may be issued thereunder, and Securities may be issued
2
<PAGE>
thereunder from time to time in one or more series and may be denominated and
payable in foreign currencies or units based on or relating to foreign
currencies, including European Currency Units. Special United States federal
income tax considerations applicable to any Securities so denominated will be
described in the Prospectus Supplement relating thereto. Unless otherwise
indicated in the applicable Prospectus Supplement, the Indenture also permits
the Company to increase the principal amount of any series of Securities
previously issued and to issue such increased principal amount. (Section 2.3)
The Prospectus Supplement will set forth the following terms relating to the
Offered Securities: (1) the specific designation of the Offered Securities;
(2) any limit on the aggregate principal amount of the Offered Securities; (3)
the date or dates, if any, on which the Offered Securities will mature; (4)
the rate or rates per annum (which may be fixed or variable) at which the
Offered Securities will bear interest, if any, the date or dates on which any
such interest will be payable and the Record Dates for any interest payable on
the Offered Securities which are Registered Securities; (5) any mandatory or
optional redemption or sinking fund provisions, including the period or
periods within which, the price or prices at which and the terms and
conditions upon which the Offered Securities may be redeemed or purchased at
the option of the Company or otherwise; (6) whether the Offered Securities
will be issuable in registered form or bearer form or both, and, if issuable
in bearer form, the restrictions as to the offer, sale and delivery of the
Offered Securities in bearer form and as to exchanges between registered and
bearer form; (7) whether the Offered Securities will be issuable in the form
of one or more temporary or permanent Global Securities and, if so, the
identity of the Depositary for such Global Securities; (8) the denominations
in which any of the Offered Securities which are in registered form will be
issuable, if other than denominations of $1,000 and any multiple thereof, and
the denominations in which any of the Offered Securities which in bearer form
will be issuable, if other than the denominations of $1,000 and $5,000; (9)
each office or agency where the principal of and any premium and interest on
the Offered Securities will be payable, and each office or agency where the
Offered Securities may be presented for registration of transfer or exchange;
(10) if other than United States dollars, the foreign currency or the units
based on or relating to foreign currencies in which the Offered Securities are
denominated and/or in which the payment of the principal of and any premium
and interest on the Offered Securities will or may be payable; (11) any
applicable United States federal income tax consequences, including whether
and under what circumstances the Company will pay additional amounts with
respect to the Offered Securities to a non-United States Person (as defined in
such Prospectus Supplement) on account of any tax, assessment or governmental
charge withheld or deducted and, if so, whether the Company will have the
option to redeem such Offered Securities rather than pay such additional
amounts; and (12) any other terms of the Offered Securities not inconsistent
with the Indenture, including covenants and events of default relating solely
to the Offered Securities.
Securities may be issued under the Indenture bearing no interest or interest
at a rate below the prevailing market rate at the time of issuance, to be
offered and sold at a discount below their stated principal amount. United
States federal income tax consequences and other special considerations
applicable to any such discounted Securities or to other Securities offered
and sold at par which are treated as having been issued at a discount for
United States federal income tax purposes will be described in the Prospectus
Supplement relating thereto.
The Securities and any coupons appertaining thereto will be unsecured and
will rank pari passu with all other unsecured and unsubordinated indebtedness
of the Company. However, since the Company is a holding company, the right of
the Company, and hence the right of the creditors of the Company (including
the Holders of Securities), to participate in any distribution of the assets
of any subsidiary upon its liquidation or reorganization or otherwise is
necessarily subject to the prior claims of creditors of such subsidiary,
except to the extent that claims of the Company as a creditor of such
subsidiary may be recognized.
EXCHANGE AND TRANSFER
Securities may be presented for exchange and registered Securities may be
presented for registration of transfer at the offices and subject to the
restrictions set forth therein and in the applicable Prospectus Supplement
3
<PAGE>
without service charge, but upon payment of any taxes or other governmental
charges due in connection therewith, subject to any applicable limitations
contained in the Indenture. The Company has appointed the Trustee as Security
Registrar. Securities in bearer form and the coupons appertaining thereto, if
any, will be transferable by delivery. (Sections 2.8 and 3.2)
PAYMENT
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of the principal of and the premium and interest, if any, on all Securities
(other than a Registered Global Security) in registered form will be made at
the office or agency of the Trustee in the Borough of Manhattan, The City of
New York or Chicago, Illinois, except that, at the option of the Company,
payment of any interest may be made (i) by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register
or (ii) by wire transfer to an account maintained by the Person entitled
thereto as specified in the Security Register. (Sections 3.1 and 3.2). Unless
otherwise indicated in the applicable Prospectus Supplement, payment of any
interest due on Securities in registered form will be made to the Person in
whose name such Registered Securities are registered at the close of business
on the Record Date for such interest payment. (Section 2.7)
REGISTERED GLOBAL SECURITIES
The registered Securities of a particular series may be issued in the form
of one or more Registered Global Securities which will be deposited with a
Depositary, or its nominee, each of which will be identified in the Prospectus
Supplement relating to such series. Unless and until exchanged, in whole or in
part, for Securities in definitive Registered form, a Registered Global
Security may not be transferred except as a whole by the Depositary for such
Registered Global Security to a nominee of such Depositary, by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor of such Depositary or a
nominee of such successor. (Section 2.8)
The specific terms of the depositary arrangement with respect to any portion
of a particular series of Securities to be represented by a Registered Global
Security will be described in the Prospectus Supplement relating to such
series. The Company anticipates that the following provisions will apply to
all depositary arrangements.
Upon the issuance of a Registered Global Security, the Depositary therefor
or its nominee will credit, on its book entry and registration system, the
respective principal amounts of the Securities represented by such Registered
Global Security to the accounts of such persons having accounts with such
Depositary ("participants"), as shall be designated by the underwriters or
agents participating in the distribution of such Securities or by the Company
if such Securities are offered and sold directly by the Company. Ownership of
beneficial interests in a Global Security will be limited to participants or
persons that may hold beneficial interests through participants. Ownership of
beneficial interests in such Registered Global Security will be shown on, and
the transfer of such ownership will be effected only through, records
maintained by such Depositary therefor or its nominee (with respect to
interests of participants) or by participants or persons that hold through
participants (with respect to interests of persons other than participants).
The laws of some states require certain purchasers of securities to take
physical delivery thereof in definitive form. Such depositary arrangements and
such laws may impair the ability to transfer beneficial interests in a
Registered Global Security.
So long as the Depositary for a Registered Global Security or its nominee is
the registered owner thereof, such Depositary or such nominee, as the case may
be, will be considered the sole owner or Holder of the Securities represented
by such Registered Global Security for all purposes under the Indenture.
Except as provided below, owners of beneficial interests in a Registered
Global Security will not be entitled to have Securities of the series
represented by such Registered Global Security registered in their names, will
not receive or be entitled to receive physical delivery of Securities of such
series in definitive form and will not be considered the owners or Holders
thereof under the Indenture.
4
<PAGE>
Principal, premium, if any, and interest payments on a Registered Global
Security registered in the name of a Depositary or its nominee will be made to
such Depositary or its nominee, as the case may be, as the registered owner of
such Registered Global Security. None of the Company, the Trustee, or any
paying agent for Securities of the series represented by such Registered
Global Security will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial interests in
such Registered Global Security or for maintaining, supervising or reviewing
any records relating to such beneficial interests.
The Company expects that the Depositary for a Registered Global Security or
its nominee, upon receipt of any payment of principal, premium or interest,
will credit immediately participants' accounts with payments in amounts
proportionate to their respective beneficial interests in the principal amount
of such Registered Global Security as shown on the records of such Depositary
or its nominee. The Company also expects that payments by participants to
owners of beneficial interests in such Registered Global Security held through
such participants will be governed by standing instructions and customary
practices, as is the case with securities held for the accounts of customers
registered in "street name", and will be the responsibility of such
participants.
If a Depositary for a Registered Global Security representing Securities of
a particular series is at any time unwilling or unable to continue as
Depositary and a successor Depositary is not appointed by the Company within
90 days, the Company will issue Securities of such series in definitive form
in exchange for such Registered Global Security. In addition, the Company may
at any time and in its sole discretion determine not to have the Securities of
a particular series represented by a Registered Global Security and, in such
event, will issue Securities of such series in definitive form in exchange for
all of the Registered Global Securities representing Securities of such
series.
CERTAIN COVENANTS OF THE COMPANY
Limitation on Liens. Neither the Company nor any Restricted Subsidiary will
incur, assume or guarantee any indebtedness for borrowed money secured by a
mortgage, pledge, security interest or other lien or encumbrance (any such
mortgage, pledge, security interest or other lien or encumbrance being
hereinafter called a "Mortgage" and any such indebtedness being hereinafter
called "Secured Debt") on any Principal Property or on any shares of stock or
indebtedness of any Restricted Subsidiary without effectively providing that
the Securities (together with, if the Company shall so determine, any other
indebtedness for borrowed money ranking equally with or prior to the
Securities incurred, assumed or guaranteed by the Company or any Restricted
Subsidiary, whether then or thereafter existing) shall be secured equally and
ratably with (or, at the option of the Company, prior to) such Secured Debt,
unless after giving effect thereto the aggregate principal amount of all
Secured Debt, plus the aggregate amount of all Attributable Debt in respect of
sale and leaseback transactions involving Principal Properties (with certain
exceptions), would not exceed 10% of Consolidated Net Tangible Assets. This
restriction will not apply to, and there will be excluded in computing Secured
Debt for the purposes of such restriction, indebtedness secured by (a)
Mortgages on property of, or on any shares of stock or indebtedness of, any
corporation existing at the time it is merged into or consolidated with the
Company or any Restricted Subsidiary, at the time of a sale or other
disposition of its properties (or any division thereof) as an entirety or
substantially as an entirety to the Company or any Restricted Subsidiary or at
the time it becomes a Restricted Subsidiary; (b) Mortgages securing
indebtedness of a Restricted Subsidiary to the Company or to another
Restricted Subsidiary; (c) Mortgages on any Principal Property, shares of
stock or indebtedness existing at the time of acquisition thereof by the
Company or any Restricted Subsidiary; (d) certain Mortgages created, incurred
or assumed within 180 days after the latest to occur of the acquisition, the
completion of construction or improvement or the commencement of commercial
operation of any property acquired, constructed or improved after the date of
the Indenture to secure the payment of any part of the purchase price of such
property or the cost of such construction or improvement; (e) Mortgages in
favor of the United States of America or other governmental bodies to secure
partial, progress, advance or other payments, or other obligations, or to
secure any indebtedness incurred for the purpose of financing all or any part
of the cost of acquiring, constructing or improving the property subject
thereto (including Mortgages incurred in connection with industrial revenue
and pollution control bonds); (f) Mortgages existing at the date of the
Indenture; and (g) Mortgages for the sole purpose of extending, renewing or
replacing indebtedness secured by or described in the foregoing clauses (a)
through (f). (Section 3.6)
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The term "Subsidiary" means a corporation a majority of the outstanding
voting stock of which is owned, directly or indirectly, by the Company and/or
one or more of its Subsidiaries. The term "Restricted Subsidiary" means a
Subsidiary substantially all of whose assets are located or substantially all
of whose business is carried on within the United States of America (and its
territories and possessions) and which owns any Principal Property. The term
"Principal Property" means any manufacturing or processing plant or warehouse
located in the United States of America owned by the Company or any Restricted
Subsidiary and having a gross book value in excess of 3% of Consolidated Net
Tangible Assets, other than (a) any such plant or warehouse which, in the
opinion of the Board of Directors, is not of material importance to the total
business conducted by the Company and its Subsidiaries as an entirety or (b)
any portion of any such plant or warehouse which, in the opinion of such
Board, is not of material importance to the use or operation of such plant or
warehouse. The term "Attributable Debt" means, with respect to any lease
constituting part of a sale and leaseback transaction, the lesser of (a) the
fair value of the Principal Property subject to such lease (as determined by
the Board of Directors) and (b) the total net amount of rent (excluding rent
contingent on the amount of sales) required to be paid by the lessee under
such lease during the remaining primary term thereof (discounted at the rate
of interest implicit in such lease). The term "Consolidated Net Tangible
Assets" means the aggregate amount of assets (less applicable reserves and
other properly deductible items), after deducting therefrom: (a) all current
liabilities (including the current portion of Funded Debt), (b) all other
liabilities except deferred income taxes, Funded Debt and stockholders'
equity, (c) all goodwill, trade names, trademarks, patents, organization
expenses, unamortized debt discount and expense less unamortized debt premium
and other like intangibles (other than deferred charges and prepaid expenses),
(d) adjustments for minority interests and (e) equity in and net advances to
Subsidiaries (other than Restricted Subsidiaries), all as set forth on the
most recent consolidated balance sheet of the Company and its Restricted
Subsidiaries and computed in accordance with generally accepted accounting
principles. "Funded Debt" means all indebtedness for borrowed money owed or
guaranteed by the Company or any of its Restricted Subsidiaries, and any other
indebtedness which would appear as indebtedness on the most recent
consolidated balance sheet of the Company and its Restricted Subsidiaries,
which matures, or is renewable or extendible at the option of the borrower so
that it matures, more than 12 months from the date of such consolidated
balance sheet. (Section 1.1)
Restrictions on Sale and Leaseback Transactions. Neither the Company nor any
Restricted Subsidiary may enter into any sale and leaseback transaction
involving any Principal Property if the latest to occur of the acquisition,
the completion of construction and the commencement of commercial operation of
such Principal Property shall have occurred more than 180 days prior thereto,
unless (a) the Company or such Restricted Subsidiary could create Secured Debt
secured by such Principal Property under the restrictions described above
under "Limitation on Liens" in an amount equal to the Attributable Debt with
respect to such sale and leaseback transaction without equally and ratably
securing the Securities or (b) the Company, within 90 days from the effective
date of such sale and leaseback transaction, shall apply an amount not less
than the greater of (i) the net proceeds of the sale of such Principal
Property or (ii) the fair value (as determined by the Board of Directors) of
such Principal Property to (x) the retirement of Funded Debt or (y) the
purchase of other property which will constitute a Principal Property having a
fair value (as so determined) at least equal to the fair value of the
Principal Property leased in such sale and leaseback transaction. This
restriction will not apply to any sale and leaseback transaction (a) between
the Company and a Restricted Subsidiary or between Restricted Subsidiaries or
(b) involving the taking back of a lease for a period of less than three
years. (Section 3.7)
EVENTS OF DEFAULT
The occurrence of any of the following events with respect to the Securities
of any series will constitute an "Event of Default" with respect to the
Securities of such series: (a) default for 30 days in the payment of any
interest upon any of the Securities of such series; (b) default in the payment
of any principal of or the premium, if any, on any of the Securities of such
series, whether at maturity, upon redemption, by declaration or otherwise; (c)
default in the deposit of any sinking fund payment in respect of any
Securities of such series; (d) default for 90 days by the Company in the
observance or performance of any other covenant or agreement contained in the
Indenture relating to the Securities of such series after written notice
thereof as provided in the Indenture; or (e)
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certain events of bankruptcy, insolvency or reorganization relating to the
Company. (Section 5.1) Additional Events of Default may be prescribed for the
benefit of the Holders of a particular series of Securities as described in
the Prospectus Supplement relating thereto.
If an Event of Default due to a default in the payment of the principal of
or the premium or interest, if any, on, or in the deposit of any sinking fund
payment with respect to, any series of Securities shall have occurred and be
continuing, either the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Securities of such series then Outstanding
may declare the principal of all Securities of such series and the interest,
if any, accrued thereon to be due and payable immediately. If any Event of
Default due to a default in the observance or performance of any other
covenant or agreement of the Company contained in the Indenture and applicable
to the Securities of one or more (but less than all) series then Outstanding
shall have occurred and be continuing, either the Trustee or the Holders of
not less than 25% in aggregate principal amount of the Securities of the
affected series then Outstanding (voting as one class) may declare the
principal of all Securities of each such affected series and the interest, if
any, accrued thereon to be due and payable immediately. If an Event of Default
due to a default in the observance or performance of any other covenant or
agreement of the Company contained in the Indenture applicable to all
Securities then Outstanding or due to certain events of bankruptcy, insolvency
or reorganization relating to the Company shall have occurred and be
continuing, either the Trustee or the Holders of not less than 25% in
aggregate principal amount of all Securities then Outstanding (voting as one
class) may declare the principal of all Securities and the interest, if any,
accrued thereon to be due and payable immediately. Upon certain conditions,
any such declarations may be rescinded and annulled if all Events of Default,
other than the nonpayment of accelerated principal, with respect to the
Securities of all such affected series then Outstanding shall have been cured
or waived as provided in the Indenture by the Holders of a majority in
aggregate principal amount of the Securities of the affected series then
Outstanding (voting as one class, except in the case of Events of Default
described in clauses (a), (b) and (c) of the preceding paragraph, as to which
each series so affected will vote as a separate class). See "Modification of
the Indenture" below. Reference is made to the Prospectus Supplement relating
to any series of Original Issue Discount Series for the particular provisions
relating to the acceleration of a portion of the principal amount thereof upon
the occurrence and continuance of an Event of Default with respect thereto.
(Section 5.1)
The Indenture provides that, subject to the duty of the Trustee to act with
the requisite standard of care in case a default with respect to a series of
Securities shall have occurred and be continuing, the Trustee will be under no
obligation to exercise any of its rights or powers under the Indenture at the
request, order or direction of the Holders of the Securities, unless such
Holders shall have offered to the Trustee reasonable security or indemnity.
(Sections 5.6 and 6.2) Subject to such provisions for indemnity and certain
other limitations contained in the Indenture, the Holders of a majority of the
aggregate principal amount of the Securities of each Outstanding series then
Outstanding will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such affected series. (Section 5.9)
The Indenture provides that no Holder of Securities may institute any action
against the Company under the Indenture (except actions for payment of overdue
principal, premium or interest) unless such Holder previously shall have given
to the Trustee written notice of default and continuance thereof and unless
the Holders of not less than 25% in aggregate principal amount of the
Securities of the affected series then Outstanding (voting as one class) shall
have requested the Trustee to institute such action and shall have offered the
Trustee reasonable indemnity, the Trustee shall not have instituted such
action within 60 days of such request and the Trustee shall have received
direction inconsistent with such request by the Holders of a majority in
aggregate principal amount of the Securities of the affected series then
Outstanding (voting as one class). (Sections 5.6 and 5.9)
The Indenture requires the Company to furnish to the Trustee annually a
statement as to the absence of certain defaults under the Indenture. (Section
3.5) The Indenture provides that the Trustee may withhold notice to the
Holders of the Securities of any series of any default affecting such series
(except defaults as to payment of principal, premium or interest on the
Securities of such series or as to sinking fund payments) if it considers such
withholding to be in the interests of the Holders of the Securities of such
series. (Section 5.11)
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CONSOLIDATION, MERGER OR SALE OF ASSETS
The Company may consolidate with or merge into, or sell, lease or convey its
property as an entirety or substantially as an entirety to, any other
corporation if (a) such corporation assumes the obligations of the Company
under the Securities and the Indenture and is organized and existing under the
laws of the United States of America, any state thereof or the District of
Columbia and (b) immediately after such consolidation, merger, sale, lease or
conveyance, no Event of Default, and no event which, after notice, lapse of
time or both, would become an Event of Default, shall have occurred and be
continuing. If, upon any such consolidation, merger, sale, lease or
conveyance, any Principal Property or any shares of stock or indebtedness of
any Restricted Subsidiary owned by the Company or a Restricted Subsidiary
immediately prior thereto would become subject to any mortgage, security
interest, pledge, lien or other encumbrance (unless such mortgage, security
interest, pledge, lien or other encumbrance would be permitted by the
provisions described above under "Limitation on Liens"), the Securities must
be secured (together with, if the Company shall so determine, any other
indebtedness for borrowed money ranking equally with or prior to the
Securities incurred, assumed or guaranteed by the Company or any Restricted
Subsidiary, whether then or thereafter existing) by a direct lien on such
Principal Property, shares of stock or indebtedness prior to all liens other
than any theretofore existing thereon. (Sections 9.1 and 9.2)
MODIFICATION OF THE INDENTURE
The Indenture permits the Company and the Trustee to enter into supplemental
indentures without the consent of the Holders of the Securities to: (a) secure
the Securities of one or more series, (b) evidence the assumption by a
successor corporation of the obligations of the Company under the Indenture
and the Securities then Outstanding, (c) add covenants for the protection of
the Holders of the Securities, (d) cure any ambiguity or correct any
inconsistency in the Indenture, (e) establish the form and terms of the
Securities of any series and (f) evidence the acceptance of appointment by a
successor Trustee. (Section 8.1)
The Indenture also permits the Company and the Trustee, with the consent of
the Holders of not less than a majority in aggregate principal amount of the
Securities of each series then Outstanding and affected, to add any provisions
to, or change in any manner or eliminate any of the provisions of, the
Indenture or modify in any manner the right of the Holders of the Securities
of each such affected series; provided, however, that the Company and the
Trustee may not, without the consent of the Holder of each Security then
Outstanding and affected thereby: (a) extend the time of payment of the
principal (or any installment) of any Security, or reduce the principal amount
thereof, reduce the rate or extend the time of payment of interest thereon, or
reduce any amount payable on the redemption thereof, or change the currency in
which the principal thereof or the interest thereon is payable, or reduce the
amount payable on any Original Issue Discount Security upon acceleration or
provable in bankruptcy, or alter certain provisions of the Indenture relating
to Securities not denominated in United States dollars, or impair the right to
institute suit for the enforcement of any payment on any Security when due; or
(b) reduce the percentage in principal amount of the Securities of the
affected series, the consent of whose Holders is required for any such
modification or for any waiver provided for in the Indenture. (Section 8.2)
Prior to the acceleration of the maturity of any Securities, the Holders of
a majority in aggregate principal amount of the Securities of all series at
the time Outstanding with respect to which a default or an Event of Default
shall have occurred and be continuing (voting as one class) may on behalf of
the Holders of all such affected Securities waive any past default or Event of
Default and its consequences, except a default or an Event of Default in
respect of a covenant or provision of the Indenture or of any Security which
cannot be modified or amended without the consent to the Holder of each
Security affected.
DEFEASANCE AND DISCHARGE
The Indenture provides that, at the option of the Company: (a) the Company
will be discharged from any and all obligations in respect of the Securities
of a particular series then Outstanding (except for certain
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obligations to register the transfer of or exchange the Securities of such
series, to replace stolen, lost or mutilated Securities of such series, to
maintain paying agencies and to maintain the trust described below) or (b) the
Company need not comply with certain restrictive covenants of the Indenture
(including those described under "Certain Covenants of the Company" and
"Consolidation, Merger or Sale of Assets"), in each case if the Company
irrevocably deposits in trust with the Trustee money, and/or securities of the
government which issued the currency in which the Securities of such series
are payable or securities backed by the full faith and credit of such
government which, through the payment of the principal thereof and the
interest thereon in accordance with their terms, will provide money in an
amount sufficient to pay all the principal of (and premium, if any) and
interest on the Securities of such series on the stated maturity of such
Securities (which may include one or more redemption dates designated by the
Company) in accordance with the terms thereof. To exercise such option, the
Company is required, among other things, to deliver to the Trustee an opinion
of independent counsel of nationally-recognized standing to the effect that
the exercise of such option would not cause the Holders of the Securities of
such series to recognize income, gain or loss for United States federal income
tax purposes as a result of such defeasance, and such Holders will be subject
to United States federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such defeasance had not
occurred, and, in the case of a discharge as described in clause (a) of the
preceding sentence, such opinion is to be accompanied by a private letter
ruling to the same effect received from the Internal Revenue Service, a
revenue ruling to such effect pertaining to a comparable form of transaction
published by the Internal Revenue Service or appropriate evidence that since
the date of the Indenture there has been a change in the applicable federal
income tax law. (Section 10.1)
In the event the Company exercises its option to effect a covenant
defeasance with respect to the Securities of any series as described in the
preceding paragraph and the Securities of such series are thereafter declared
due and payable because of the occurrence of any Event of Default other than
an Event of Default caused by failing to comply with the covenants which are
defeased, and the amount of money and securities on deposit with the Trustee
would be insufficient to pay amounts due on the Securities of such series at
the time of their accelerated maturity, the Company would remain liable for
such amounts.
The Company may also obtain a discharge of the Indenture with respect to all
Securities then Outstanding (except for certain obligations to register the
transfer of or exchange such Securities, to replace stolen, loss or mutilated
Securities, to maintain paying agencies and to maintain the trust described
below) by irrevocably depositing in trust with the Trustee money, and/or
securities of the government which issued the currency in which such
Securities are payable or securities backed by the full faith and credit of
such government which, through the payment of the principal thereof or the
interest thereon in accordance with their terms, will provide money in an
amount sufficient to pay all the principal of (and premium, if any) and
interest on the Securities on the stated maturities thereof (including one or
more redemption dates), provided that such Securities are by their terms due
and payable, or are to be called for redemption, within one year. (Section
10.1)
CONCERNING THE TRUSTEE
The First National Bank of Chicago, the trustee under the Indenture, is one
of a number of banks with which the Company and its subsidiaries maintain
ordinary banking relationships, including, in certain cases, credit
facilities.
GOVERNING LAW
The Indenture and the Debt Securities shall be governed by, and for all
purposes shall be construed in accordance with, the laws of the State of New
York, except as may otherwise be required by mandatory provisions of law.
PLAN OF DISTRIBUTION
The Company may sell Debt Securities in a public offering to or through
underwriters and may also sell Debt Securities directly to one or more other
purchasers or through agents.
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The Company may sell Debt Securities as soon as practicable after the
effectiveness of the Registration Statement of which this Prospectus forms a
part. The names of any underwriters involved in the sale of the Debt
Securities in respect of which this Prospectus is delivered, the amount or
number of Debt Securities to be purchased by any such underwriters and any
applicable commissions or discounts will be set forth in the applicable
Prospectus Supplement.
The distribution of the Debt Securities may be effected from time to time in
one or more transactions at a fixed price or prices, which may be changed, or
at market prices prevailing at the time of sale, at prices relating to such
prevailing market prices or at negotiated prices. The Prospectus Supplement
will describe the method of distribution of the Offered Debt Securities.
In connection with the sale of Debt Securities, underwriters or agents may
receive compensation from the Company or from purchasers of Debt Securities
for whom they may act as agents in the form of discounts, concessions or
commissions. Underwriters may sell Debt Securities to or through dealers, and
such dealers may receive compensation in the form of discounts, concessions or
commissions from the underwriters and/or commissions from the purchasers for
whom they may act as agents. Underwriters, dealers and agents that participate
in the distribution of Debt Securities may be deemed to be underwriters, and
any discounts or commissions received by them from the Company and any profit
on the resale of Debt Securities by them may be deemed to be underwriting
discounts and commissions, under the Securities Act. Any such underwriter or
agent will be identified, and any such compensation received from the Company
will be described, in the Prospectus Supplement.
Under agreements that may be entered into by the Company, underwriters,
dealers and agents who participate in the distribution of Debt Securities may
be entitled to indemnification by the Company against certain liabilities,
including liabilities under the Securities Act, or to contribution with
respect to payments which such underwriters, dealer or agents may be required
to make in respect thereof.
In connection with any offering of Debt Securities, the Company may grant to
the underwriters an option to purchase additional Debt Securities to cover
over-allotments, if any, at the initial public offering price (with an
additional underwriting commission), as may be set forth in the accompanying
Prospectus Supplement. If the Company grants any such option, the terms of
such option will be set forth in the applicable Prospectus Supplement.
If so indicated in the accompanying Prospectus Supplement, the Company will
authorize underwriters or other persons acting as the Company's agents to
solicit offers by certain institutions to purchase the Offered Securities from
the Company pursuant to contracts providing for payment and delivery on a
future date. Institutions with which such contracts may be made include
commercial and savings banks, insurance companies, pension funds, educational
and charitable institutions and others, but in all cases such institutions
must be approved by the Company. The obligations of any purchaser under any
such contract will be subject to the condition that the purchase of the
Offered Securities shall not at the time of delivery be prohibited under the
laws of the jurisdiction to which such purchaser is subject. The underwriters
and such other agents will not have any responsibility in respect of the
validity or performance of such contracts.
Certain of the underwriters or agents and their associates may be customers
of, or engage in transactions with and perform services for the Company in the
ordinary course of business.
All Debt Securities will be issues of new securities with no established
trading market. Any underwriters to whom Debt Securities are sold by the
Company for public offering and sale may make a market in such Debt
Securities, but such underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. No assurance can be
given concerning the liquidity of the trading market for any Debt Securities.
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LEGAL OPINIONS
The validity of the Debt Securities offered hereby will be passed upon for
the Company by John M. Costigan, in his capacity as Senior Vice President,
General Counsel and Secretary of the Company, and Sidley & Austin, Chicago,
Illinois, and for any underwriters, dealers or agents by Sullivan & Cromwell,
New York, New York. Mr. Costigan, in his capacity as Senior Vice President,
General Counsel and Secretary of the Company, is paid a salary by the Company
and is a participant in various employee benefits plans offered to employees
of the Company.
EXPERTS
The financial statements as of and for the fiscal year ended December 27,
1997 incorporated in this Prospectus by reference to the Annual Report on Form
10-K of the Company for the fiscal year ended December 27, 1997 have been so
incorporated in reliance on the report of Ernst & Young LLP, independent
accountants, given on the authority of said firm as experts in auditing and
accounting. The financial statements as of December 28, 1996 and for each of
the two years in the fiscal period ended December 28, 1996 incorporated in
this Prospectus by reference to the Annual Report on Form 10-K of the Company
for the fiscal year ending December 27, 1997 have been so incorporated in
reliance on the report of PricewaterhouseCoopers LLP, independent accountants,
given on the authority of said firms as experts in auditing and accounting.
NOTE REGARDING FORWARD LOOKING STATEMENTS
Section 21E of the Exchange Act provides a "safe harbor" for forward-looking
statements to encourage companies to provide prospective information about
their companies, so long as those statements are identified as forward-looking
and are accompanied by meaningful cautionary statements identifying important
factors that could cause actual results to differ materially from those
discussed in the statements. The Company desires to take advantage of the
"safe harbor" provisions of the Exchange Act with regard to forward-looking
statements contained in this Prospectus and any document incorporated by
reference herein. The forward-looking statements are and will be based on
management's then current views and assumptions regarding future events and
financial performance. The factors identified by the Company include, among
other things, the factors noted in the "Narrative Description of Business" in
the Company's Annual Report on Form 10-K for the fiscal year ended December
27, 1997 ("Annual Report"), and "Management's Discussion and Analysis of
Financial Condition and Results of Operation" in the Annual Report and in the
Company's Quarterly Report on Form 10-Q for the fiscal quarter ended June 27,
1998. Other risk factors include the following: general economic and business
conditions in the domestic and global markets; actions of competitors,
including competitive pricing; changes in customer preferences and spending
patterns; changes in social and demographic trends; changes in laws and
regulations, including changes in taxation and accounting standards; foreign
economic conditions, including currency exchange rate fluctuations; interest
rate fluctuations; the effects of changing cost and availability of raw
materials; outcome of litigation; adequacy of reserves; and the effectiveness
of the Company's marketing and sales programs.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the estimated expenses in connection with the
offering described in the Registration Statement:
Securities and Exchange Commission Registration fee $ 44,250
Blue Sky fees and expenses (including counsel fees) 15,000
Legal fees 75,000
Trustee and transfer agent fees and expenses 15,000
Printing and engraving 10,000
Accounting fees 32,000
Rating Agency fees 165,000
Miscellaneous 50,000
-------
Total $406,250
All of the above, except for the SEC fee, are estimated.
Item 15. Indemnification of Directors and Officers
Article Tenth of the Company's Restated Certificate of Incorporation provides
that each person who was or is made a party to or is threatened to be made a
party to any action, suit or proceeding by reason of the fact that he or she is
or was a director, officer or employee of the Company (or was or is serving at
the request of the Company as a director, officer, employee or agent for another
entity) will be indemnified and held harmless by the Company, to the full extent
authorized by the General Corporation Law of the State of Delaware (the
"Delaware Law"), as currently in effect (or, to the extent indemnification is
broadened, as it may be amended), against all expense, liability or loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts to be paid or to be paid in settlement) reasonably incurred by such
person in connection therewith. Such Article also provides that the rights
conferred thereby are contract rights and will include the right to be paid by
the Company for the expenses incurred in defending the proceedings specified
above, in advance of their final disposition, except that, if the Delaware Law
so requires, such payment will only be made upon delivery to the Company by the
indemnified party of an undertaking to repay all amounts so advanced if it is
ultimately determined that the person receiving such payments is not entitled to
be indemnified under such provisions or otherwise. Article Tenth provides that
the Company may, by action of its Board of Directors, provide indemnification to
its agents with the same scope and effect as the foregoing indemnification of
directors, officers and employees.
<PAGE>
Such Article also provides that persons indemnified thereunder may bring suit
against the Company to recover unpaid amounts claimed thereunder, and that if
such suit is successful, the expense of bringing such a suit will be reimbursed
by the Company. It further provides that while it is a defense to such suit that
the person claiming indemnification has not met the applicable standards of
conduct making indemnification permissible under the Delaware Law, the burden of
proving the defense will be on the Company and neither the failure of the
Company's Board of Directors to have made a determination that indemnification
is proper, nor an actual determination by such Board that the claimant has not
met the applicable standard of conduct, will be a defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct.
Such Article also provides that the rights to indemnification and the payment
of expenses incurred in defending a proceeding in advance of its final
disposition conferred therein will not be exclusive of any other right which any
such person may have or acquire under any statute, provision of the Restated
Certificate of Incorporation or the By-Laws of the Company, or otherwise.
Finally, such Article provides that the Company may maintain insurance, at its
expense, to protect itself and any of its directors, officers, employees or
agents against any expense, liability or loss, whether or not the Company would
have the power to indemnify such persons against such expense, liability or loss
under the Delaware Law.
Section 145 of the Delaware Law provides that corporations organized under the
Delaware Law have the power to indemnify directors, officers and agents against
liability in certain circumstances.
Item 16. Exhibits
Exhibits
________
1 - Form of Underwriting Agreement with form of pricing agreement
attached./(1)(3)/
4 - Form of Indenture./(2)/
5 - Opinion and consent of Sidley & Austin./(3)/
12 - Calculation of Ratio of Earnings to Fixed Charges./(3)/
23(a) - Consent of Independent Auditors./(1)/
23(b) - Consent of Independent Accountants./(1)/
23(c) - Consent of Counsel (included in Exhibit 5 above).
24 - Powers of Attorney./(3)/
25 - Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of The First National Bank of Chicago, Trustee
(bound separately)./(3)/
/(1)/ Constitutes an amendment to the Exhibits filed with the
<PAGE>
Registrant's Registration Statement on Form S-3 (Commission File No.
33-35137).
/(2)/ Incorporated by reference to Exhibit 4.2 to Registrant's Annual Report on
Form 10-K for the year ended December 28, 1996.
/(3)/ Previously filed.
Item 17. Undertakings
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that the undertakings set forth in paragraphs (i) and (ii)
above do not apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such
<PAGE>
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to section
13(a) or section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in 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.
(5) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the provisions set forth or referred to in
Item 15, or otherwise, the registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer,
or controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
(6) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form or prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(7) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(8) To file an application for the purpose of determining the eligibility
of the trustee to act under subsection (a) of Section 310 of the Trust Indenture
Act in accordance with the rules and regulations prescribed by the Commission
under Section 305(b)(2) of the Act.
<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 the
requirements for filing on Form S-3 and has duly caused this amendment to
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Deerfield, State of Illinois, on this 29th day
of October 1998.
Premark International, Inc.
(Registrant)
By
JAMES M. RINGLER
- ---------------------
James M. Ringler
Chairman of the Board,
Chief Executive Officer and President
Pursuant to the requirements of the Securities Act of 1933, this amendment
to registration statement has been signed below by the following persons in the
capacities indicated.
Signature Title Date
JAMES M. RINGLER Chairman of the Board, October 29, 1998
- --------------------- Chief Executive Officer
James M. Ringler and President (Principal
Executive Officer)
* Senior Vice President October 29, 1998
- --------------------- and Chief Financial
Lawrence B. Skatoff Officer (Principal
Financial Officer)
* Vice President and October 29, 1998
- --------------------- Controller (Principal
Robert W. Hoaglund Accounting Officer)
<PAGE>
* Director October 29, 1998
- ---------------------
Harry W. Bowman
* Director October 29, 1998
- ---------------------
Dr. Ruth M. Davis
* Director October 29, 1998
- ---------------------
Lloyd C. Elam, M.D.
* Director October 29, 1998
- ---------------------
W. James Farrell
* Director October 29, 1998
- ---------------------
Richard S. Friedland
* Director October 29, 1998
- ---------------------
John B. McKinnon
* Director October 29, 1998
- ---------------------
David R. Parker
* Director October 29, 1998
- ---------------------
Janice D. Stoney
*By JOHN M. COSTIGAN
--------------------
John M. Costigan
Attorney-in-fact
EXHIBIT INDEX
Exhibit
Number Description
1 Form of Underwriting Agreement with form of pricing agreement
attached.
5 Opinion and consent of Sidley & Austin.
12 Calculation of Ratio of Earnings to Fixed Charges.
23(a) Consent of Independent Auditors.
23(b) Consent of Independent Accountants.
25 Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of The First National Bank of Chicago,
Trustee.
<PAGE>
Exhibit 23(a)
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Premark
International, Inc. for the registration of $150,000,000 of debt securities and
to the incorporation by reference therein of our report dated February 6, 1998,
with respect to the 1997 consolidated financial statements and schedules of
Premark International, Inc. included in its Annual Report (Form 10-K) for the
year ended December 27, 1997, filed with the Securities and Exchange Commission.
Ernst & Young LLP
Chicago, Illinois
October 29, 1998
<PAGE>
Exhibit 23(b)
Consent of Independent Accountants
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
February 14, 1997 appearing as Exhibit 99.1 of Premark International, Inc.'s
Annual Report on Form 10-K for the fiscal year ended December 27, 1997. We also
consent to the reference to us under the heading "Experts" in such Prospectus.
PRICEWATERHOUSECOOPERS LLP
Chicago, Illinois
October 29, 1998
