As filed with the Securities and Exchange Commission on April 10, 1996
Registration No. 333-
======================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington,D.C.
-------------------------------------
FORM S-3
REGISTRATION STATEMENT
Under The Securities Act of 1933
--------------------------------------
HARNISCHFEGER INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 39-1566457
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
13400 Bishops Lane
Brookfield, Wisconsin 53005
(414) 671-4400
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
-------------------------------------------------------
K. Thor Lundgren, Esq.
Executive Vice President, Law and Government Affairs
Harnischfeger Industries, Inc.
13400 Bishops Lane
Brookfield, Wisconsin 53005
(414) 671-4400
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
---------------------------------------------------------
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this registration statement
as the registrant shall determine.
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 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. / /
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
========================================================================
<S> <C> <C> <C> <C>
Proposed Proposed
Title of Each Maximum Maximum
Class of Securities Amount to be Offering Price Aggregate Amount of
to be Registered Registered Per Unit (2) Offering Price(2) Registration Fee
- ----------------------------------------------------------------------------------------------------------
Debt Securities $200,000,000 (1) 100% $200,000,000 $68,965.52
==========================================================================
(1) Or, if any Debt Securities are issued at an original issue discount, such greater principal amount as shall
result in an aggregate initial offering price of $200,000,000.
(2) Estimated solely for purpose of calculating amount of registration fee pursuant to Rule 457(a).
------------------------------------------------------------
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its
effective date until the Registrant shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until
this Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section
8(a), may determine.
-------------------------------------------------------------
===========================================================================
</TABLE>
<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 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
April , 1996
PROSPECTUS
$200,000,000
Harnischfeger Industries, Inc.
Debt Securities
Harnischfeger Industries, Inc. ("Harnischfeger Industries" or the
"Company") directly, through agents designated from time to time, or
through dealers or underwriters also to be designated, may sell from time
to time up to $200,000,000 aggregate principal amount of its debt
securities (the "Securities") in one or more series in amounts, at prices and
upon terms to be determined at the time of sale (or, if issued at an original
issue discount, such greater principal amount as shall result in an aggregate
initial offering price of up to $200,000,000). The specific designation,
aggregate principal amount, maturities, rate (or method of calculation) and
time of payment of interest, purchase price, any terms for redemption or
sinking fund provisions and the agents, dealers or underwriters, if any, in
connection with the sale of the Securities in respect of which this
Prospectus is being delivered and other terms of the Securities are set forth
in the accompanying Prospectus Supplement ("Prospectus Supplement").
The Company reserves the sole right to accept and, together with its
agents from time to time, to reject in whole or in part any proposed
purchase of Securities to be made directly or through agents.
If an agent of the Company or a dealer or underwriter is involved in the
sale of the Securities in respect of which this Prospectus is being delivered,
the agent's commission, dealer's purchase price, or underwriter's discount
will be set forth in, or may be calculated from, the Prospectus Supplement
and the net proceeds to the Company from such sale will be the purchase
price of such Securities less such commission in the case of any agent, the
purchase price of such Securities in the case of a dealer, or the public
offering price less such discount in the case of an underwriter and less, in
each case, the other attributable issuance expenses. The aggregate
proceeds to the Company from all the Securities will be the purchase price
of Securities sold less the aggregate of agents' commissions and
underwriters' discounts and other expenses of issuance and distribution.
See "Plan of Distribution" for possible indemnification arrangements for
the agents, dealers and underwriters.
--------------------------------------------------
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 April , 1996
<PAGE>
No person is authorized to give any information or to make any
representations other than those contained in this Prospectus, the
Prospectus Supplement or any Pricing Supplement and, if given or made
such information or representation must not be relied upon as having been
authorized. This Prospectus, the Prospectus Supplement and any Pricing
Supplement do not constitute an offer to sell or a solicitation of any offer
to buy any securities other than the securities offered by this Prospectus,
the Prospectus Supplement and any Pricing Supplement or an offer to sell
or a solicitation of an offer to buy such securities in any jurisdiction to any
person to whom it is unlawful to make such offer or solicitation in such
jurisdiction. Neither the delivery of this Prospectus, the Prospectus
Supplement or any Pricing Supplement nor any sale made thereunder shall,
under any circumstances, create any implication that there has been no
change in the affairs of the Company since the date of this Prospectus, the
Prospectus Supplement or any Pricing Supplement, or that the information
herein or therein is correct as of any time since such date.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
in accordance therewith files reports, proxy statements and other
information with the Securities and Exchange Commission (the
"Commission"). Such reports, proxy statements and other information
filed by the Company with the Commission can be inspected, and copies
may be obtained, at the Public Reference Section of the Commission, 450
Fifth Street, N.W., Washington, D.C 20549, at prescribed rates, as well as
at the following Regional Offices of the Commission: 7 World Trade
Center, Suite 1300, New York, New York 10048; and 500 West Madison
Street, Suite 1400, Chicago, Illinois 60611. Reports, proxy 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., 233 South
Beaudry Street, Los Angeles, California 90012 and 301 Pine Street, San
Francisco, California 94014.
The Company has filed with the Commission a Registration Statement
on Form S-3 (the "Registration Statement") under the Securities Act of
1933, as amended (the "Securities Act"), covering the Securities. This
Prospectus and the accompanying Prospectus Supplement do not contain
all of the information set forth in the Registration Statement, certain parts
of which are omitted in accordance with the rules and regulations of the
Commission. For further information, reference is hereby made to the
Registration Statement.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the year ended
October 31, 1995, the Company's Current Reports on Form 8-K dated
December 4 (two reports) and December 8, 1995 and the Company's
Quarterly Report on Form 10-Q for the quarter ended January 31, 1996,
each of which has been filed by the Company with the Commission
pursuant to the Exchange Act (File No. 1-9299), are incorporated herein
by reference.
All documents filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Prospectus and prior to the termination of the offering of the Securities
shall be deemed to be incorporated by reference in this Prospectus and to
be a part hereof from the date of filing of such documents. Any statement
contained herein or in a document incorporated or deemed to be
incorporated by reference in this Prospectus shall be deemed to be
modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other 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.
<PAGE>
The Company will provide without charge to each person, including
any beneficial owner to whom this Prospectus is delivered, upon written or
oral request of such person, a copy of any document incorporated by
reference in this Prospectus, other than exhibits to any such document not
specifically incorporated by reference into the text of such document.
Requests for such documents should be directed to Harnischfeger
Industries, Inc. at its principal executive offices, 13400 Bishops Lane,
Brookfield, Wisconsin 53005, Attention: Corporate Secretary (Telephone
Number (414) 671-4400).
THE COMPANY
Harnischfeger Industries is a holding company for subsidiaries involved
in the worldwide manufacture and distribution of papermaking machinery
(Beloit Corporation); surface mining equipment (P&H (R) Mining
Equipment); material handling equipment (P&H Material Handling); and
underground mining equipment (Joy Mining Machinery). In early fiscal
1996, the Company completed the acquisition of Dobson Park Industries
plc ("Dobson"), an industrial engineering group with interests in
underground mining equipment, industrial electronic control systems, toys
and plastics. Dobson's principal subsidiary, Longwall International, is
engaged in the manufacture, sale and service of mining equipment for the
international underground coal mining industry and has been added to the
Company's Mining Equipment Segment. In March, 1996, the Company
completed its acquisition of Ingersoll-Rand Company's Pulp Machinery
Division ("IMPCO"). IMPCO produces process technology and
equipment for pulp production and has been added to the Company's
Papermaking Machinery and Systems Segment.
Harnischfeger Industries is the direct successor to a business begun
over 100 years ago which, at October 31, 1995, through its subsidiaries,
manufactures and markets products classified into three industry segments:
Papermaking Machinery and Systems, Mining Equipment, and Material
Handling Equipment.
PAPERMAKING MACHINERY AND SYSTEMS
The Papermaking Machinery and Systems Group is comprised of the
Company's 80% interest in Beloit Corporation ("Beloit"). Mitsubishi
Heavy Industries, Ltd. ("Mitsubishi") is the owner of the other 20%
interest in Beloit. The Company and Mitsubishi have entered into certain
agreements that provide Mitsubishi with the right to designate one of
Beloit's five directors. These agreements also place certain restrictions on
the transfer of Beloit stock. In the event of a change in control of the
Company, Mitsubishi has the right to sell its 20% interest back to the
Company for the greater of $60 million or the book value of its equity
interest.
Beloit is a leader in the design and manufacture of papermaking
machinery and related products used in the pulp and paper industries.
Beloit operates on a global basis with major manufacturing facilities in
seven countries and sales and service offices located throughout the world.
In addition, licensing arrangements exist with several major foreign
companies.
Beloit's activities are divided into the following categories: complete
installations involving the design, manufacture and installation of
integrated papermaking equipment and systems; major rebuilds and
servicing of existing systems; and the sale of ancillary equipment and
replacement parts. This machinery is custom designed to meet the specific
needs of each customer. In 1995, Beloit expanded its service business
through the acquisition of the roll-covering business of Rollin, S.A., a roll
service and repair company located in France.
Beloit is known for the quality and dependability of its products and is
a leader in product innovation and development. Beloit has made a
continuous commitment to research and development activities, and has
been granted numerous patents on its designs. Beloit systems and
equipment are used by a substantial number of paper producers, both
domestic and international.
<PAGE>
A major factor in Beloit's success in the paper machinery industry has
been its international manufacturing operations. Beloit's overseas facilities
have been used to support both domestic and international sales and have
provided Beloit with the flexibility to shift its manufacturing to more
favorable locations as appropriate. Beloit's manufacturing facilities are
supported by a domestic and international marketing network staffed by
experienced sales engineers.
Formerly, the Papermaking Machinery and Systems Group also
included the Company's 20% interest in Measurex Corporation
("Measurex"). On December 29, 1994, Measurex repurchased 2,026,900
shares of its stock which had been held by the Company. On June 23,
1995, Measurex Corporation repurchased the Company's remaining
1,613,100 shares of Measurex stock. These transactions resulted in a gain
of $29.7 million. Measurex continues to have cooperative agreements
with Beloit.
In March, 1996, Ingersoll-Rand Company's Pulp Machinery Division
("IMPCO") was acquired and added to the Company's Papermaking
Machinery and Systems Group. IMPCO produces process technology and
equipment for pulp production.
MINING EQUIPMENT
P&H Mining Equipment is the world's largest producer of electric
mining shovels and is a significant producer of electric and diesel-electric
crawler and walking draglines, hydraulic mining excavators, blasthole
drills, and electric shovel, dredge and dragline bucket products. Electric
mining shovels range in capacity from 18 to 80 cubic yards, crawler
draglines from 10 to 20 cubic yards, and hydraulic mining excavators from
12 to 27 cubic yards. Capacities for walking draglines range from 20 to
150 cubic yards. Blasthole drills have drilling diameters ranging from 9 to
22 inches and bit load capacities from 70,000 to 150,000 pounds.
The products of P&H Mining Equipment are used in mines, quarries
and earth-moving operations in the digging and loading of such minerals
and other ores as coal, copper, gold, iron ore, lead, zinc, bauxite, uranium,
phosphate, stone and clay.
P&H Mining Equipment has a relationship in the mining shovel
business with Kobe Steel, Ltd. ("Kobe") pursuant to which P&H Mining
Equipment licenses Kobe to manufacture certain electric mining shovels
and related replacement parts in Japan. Harnischfeger Corporation, a
subsidiary of the Company, has the exclusive right to market
Kobe-manufactured mining shovels and parts outside Japan (except in the
case of certain government sales). In addition, Harnischfeger Corporation
is party to an agreement, through 1996, with a corporate unit of the
People's Republic of China, licensing the manufacture and sale of two
models of electric mining shovels and related components. This
relationship provides P&H Mining Equipment with an opportunity to sell
component parts for shovels built in China.
In November 1994, pursuant to an exchange of common stock, the
Company acquired Joy Technologies Inc. ("JOY" or "Joy Mining
Machinery"), a world leader in underground mining equipment. JOY
manufactures and services mining equipment for the underground
extraction of coal and other bedded deposits and has facilities in Australia,
South Africa, the United Kingdom and the United States, as well as sales
offices in Poland and the People's Republic of China. Joy Mining
Machinery designs, manufactures and distributes continuous miners, entry
drivers and sump shearers; long-wall shearers; shuttle cars; and continuous
haulage systems for use in underground mining. JOY products are not
sold into the general construction industry, and demand for them is not
tied to cycles in that industry. JOY also maintains an extensive network of
service and parts distribution centers strategically located in major
underground mining regions to rebuild and service equipment and sell
parts in support of its installed base. The financial position and results of
operations of Harnischfeger Industries and JOY were combined
retroactively in fiscal 1995.
In early fiscal 1996, the Company completed the acquisition of Dobson
Park Industries plc for a
<PAGE>
purchase price of approximately $330 million including acquisition costs.
Dobson, headquartered in the United Kingdom, is an industrial engineering
group with interests in underground mining equipment, industrial
electronic control systems, toys and plastics. Longwall International
("Longwall"), one of the main subsidiaries of Dobson, is engaged in the
manufacture, sale and service of underground mining equipment for the
international coal mining industry. Its products include electronically
controlled roof support systems, armored face conveyors, pumps and belt
conveyor components and systems. Longwall will enable JOY to offer
integrated underground longwall mining systems to the worldwide mining
industry. The industrial electronic and toys/plastics businesses are held for
sale and are separately classified as such on the Consolidated Balance
Sheet incorporated herein by reference to the Company's Quarterly Report
on Form 10-Q for the quarter ended January 31, 1996. These businesses
have been valued at $100 million and are expected to be sold within one
year. This estimate is based on recent valuations and expected operating
results during the disposal period.
Financial information with respect to the acquisition of Dobson is
presented in Note 17 to the Consolidated Financial Statements contained
in the Company's Current Report on Form 8-K dated December 8, 1995,
and in the Company's Current Reports on Form 8-K dated December 4,
1995 (two reports). See "Incorporation of Certain Documents by
Reference."
MATERIAL HANDLING
Material Handling produces lines of through-the-air material handling
equipment designed for a variety of users, as well as container handling
cranes for use in ports, and is comprised of five business groups: P&H
Equipment, P&H Aftermarket, P&H Distribution and Service, Morris -
Engineered Products Division and Morris - Standard Products Division.
P&H Equipment
P&H Equipment is comprised of the overhead crane and hoist product
lines in the United States. It was formed from the core of what made up
the Material Handling Equipment Division in prior years.
The new crane portion of the group is comprised of several product
lines: engineered cranes, standard cranes, portal cranes and crane
components. Cranes manufactured by P&H Equipment are designed for
installation in a wide range of industrial settings and engineered to the
customer's specifications, using standard components wherever possible.
Engineered cranes are marketed for moderate to severe duty cycle
applications in capacities from 3 to 800 tons.
Standard overhead cranes are available in capacities from 5 to 100
tons. Stacker cranes, ranging in capacities from 2 to 50 tons, are
particularly suitable for factory automation projects. Portal cranes range
in lifting capacities from 5 to 100 tons and are used outdoors in woodyard,
scrap, and container handling applications.
The component products portion of this group consists of electric wire
rope and chain hoists, manual chain hoists, ratchet lever hoists, and
electrical products. Hoists range in capacities from 1/8 ton to 60 tons and
use state-of-the-art materials and manufacturing techniques and feature a
wide variety of controls.
P&H Aftermarket
The P&H Aftermarket Group consists of: Product Support, which
markets repair parts, and PHoenix(TM), which handles pre-owned and
remanufactured cranes and parts.
The Product Support portion of the Aftermarket Group markets
replacement products and parts
<PAGE>
through Material Handling Centers, both independent and company
owned, in domestic markets and through licensees or agents in
international markets.
The PHoenix portion of the P&H Aftermarket Group markets pre-owned
cranes which have been remanufactured and modernized to meet customer
requirements. It also markets pre-owned parts. PHoenix also
provides engineering services for the revitalization of crane and runway
systems. It's products are marketed directly and through independent and
company owned Material Handling Centers.
P&H Distribution and Service
This group provides installation, erection and repair and maintenance
services under the ProCare(R) trademark through a network of company
owned Material Handling Centers.
Morris - Engineered Products Division
The Morris - Engineered Products Division is the larger portion of the
Morris Mechanical Handling business based in the United Kingdom. It
manufactures special purpose heavy lifting equipment, principally
container handling cranes. In addition, its operations in South Africa are
involved in the manufacture and service of cranes and other lifting
equipment. Its United Kingdom Crane Service Division distributes and
services overhead lifting equipment throughout the United Kingdom.
Morris - Standard Products Division
The Morris - Standard Products Division manufactures hoists, cranes,
linear motors, and controls. The Hoist Division manufactures electric wire
rope hoists and both electric and hand chain hoists. The Industrial Cranes
Division manufactures electric overhead cranes to standardized designs.
Linear Motors manufactures crane and general industrial controls and
linear motors for special and general applications. A recently acquired
operation in Singapore provides a base for distribution of standard
products in that region.
DISCONTINUED SEGMENTS
The Company completed the sale of Joy Environmental Technologies
("JET") in the first quarter of fiscal 1996. JET has been presented as a
discontinued operation in the Company's Consolidated Financial
Statements. JET supplies flue gas desulfurization systems for reducing
smokestack emissions and designs, fabricates, and installs systems for the
collection and removal of ash from coal burning boilers.
USE OF PROCEEDS
Except as may be set forth in the Prospectus Supplement, the Company
intends to use the net proceeds from the sale of the Securities for general
corporate purposes, including, without limitation, the repayment of
indebtedness, the financing of its operations, the financing of capital
expenditures, the acquisition of equity securities of the Company and
possible business investments and acquisitions. Pending such applications,
the net proceeds will be temporarily invested in marketable securities.
SELECTED FINANCIAL DATA
(dollars in thousands)
The following selected financial data at and for the fiscal years ended
October 31, 1995, 1994, 1993, 1992 and 1991 has been derived from the
Company's consolidated financial statements audited by Price Waterhouse
LLP, independent accountants. The following selected financial data at
and for the three months ended January 31, 1996 and January 31, 1995 is
unaudited. The following selected financial data should be read in
conjunction with, and is qualified
<PAGE>
in its entirety by, the related financial statements and notes thereto which
have been incorporated in this Prospectus by reference.
<TABLE>
<CAPTION>
Three Months Ended
(Unaudited) (Dollar amounts in thousands except per share amounts.)
------------------------------ -------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
STATEMENT OF
INCOME DATA: 1/31/96 1/31/95 1995 1994 1993
- ---------------- --------------- ------------- ------------- ------------ ------------
Revenues
Net Sales $ 632,684 $ 449,369 $2,152,079 $1,551,728 $1,409,204
Other income 10,882 9,256 61,865 23,301 9,040
- --------------- ------------- ----------- ------------ ----------- ------------ 1,418,244
643,566 458,625 2,213,944 1,575,029 1,418,244
Cost of Sales 491,532 351,623 1,671,932 1,195,851 1,083,846
Product Development,
Selling and
Administrative
Expenses 98,856 72,862 330,990 279,016 259,831
Restructuring Charges - - - - 67,000
Nonnrecurring Charge - - - - 8,000
- --------------- ----------- ----------- ----------- ----------- ------------
Operating Income (Loss) 53,178 34,140 211,022 100,162 (433)
Interest Expense - Net (13,237) (11,492) (40,713) (47,366) (48,313)
- --------------- ------------- ------------- ------------ ------------ -------------
Income (Loss) before JOY
Merger Costs, Provision
(Credit) for Income Taxes
and Minority Interest 39,941 22,648 170,309 52,796 (48,746)
JOY Merger Costs - (17,459) (17,459) - -
Provision (Credit) for Income
Taxes (including credit for
$6,075 relating to JOY
merger costs) 14,375 1,850 53,500 13,979 (16,497)
Minority Interest (2,375) (146) (7,230) (2,224) 4,799
- ---------------- --------------- ------------ ------------- ------------ -------------
Income (Loss) From
Continuing Operations
(after deducting $11,384,
net of applicable income
taxes, related to JOY
merger costs) 23,191 3,193 92,120 36,593 (27,450)
Income (Loss) from
and (Net Loss) on
Sale of Discontinued
Operations, net of
applicable income taxes - (22,634) (31,235) (3,982) 7,760
Extraordinary Loss on
Retirement of Debt,
net of applicable
income taxes - (3,481) (3,481) (4,827) -
Cumulative Effect of
Accounting Change,
net of applicable
income taxes and
minority interest - - - (81,696) -
- ---------------- ------------ ---------- ------------- ------------ ----------
Net Income (Loss)
before Preferred
Stock Dividend
Requirements 23,191 (22,922) 57,404 (53,912) (19,690)
Preferred Stock
Dividend
Requirements - - - - -
- ---------------- ------------ --------- --------------- ------------- -----------
Net Income (Loss)
applicable
to Common
Shareholders $ 23,191 $ (22,922) $ 57,404 $ (53,912) $ (19,690)
============= =========== =========== ============ ============ ==========
Earnings (Loss)
per Share
Income (loss) from
continuing
operations (After
deducting
$0.24 per share
related to JOY
Merger Costs) $ 0.50 $ 0.07 $ 1.99 $ 0.84 $ (0.62)
Income (loss) from
and (net loss)
on sale of
discontinued
operations - (0.49) (0.67) (0.09) 0.18
Extraordinary loss
on retirement of
debt - (0.08) (0.08) (0.11) -
Cumulative effect
of accounting
change - - - (1.87) -
- ----------------- ---------- ---------- ------------ ---------------
Net Income (Loss)
Per Common
Share $ 0.50 $ (0.50) $ 1.24 $ (1.23) $ (0.44)
================= ========== ========== ============ =============== ==========
BALANCE SHEET DATA
Total assets 2,532,324 1,894,782 2,040,767 1,981,953 1,908,250
Working capital 377,841 397,090 490,087 431,325 375,236
Long-term
obligations (1) 621,128 467,291 462,991 571,054 559,852
Shareholders' equity 583,687 480,679 559,276 502,365 511,169
Debt to capitalization
ratio (2) 49.6% 43.1% 38.3% 44.9% 48.9%
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
(Dollar amounts in thousands except per share amounts.)
-------------------------------------------------------------------------
<S> <C> <C>
STATEMENT OF
INCOME DATA: 1992 1991
------------- -------------
Revenues
Net Sales $1,594,192 $ 186,703
Other income 18,571 20,468
- ---------------- ----------- ----------
1,612,763 1,884,171
Cost of Sales 1,179,904 1,420,176
Product Development,
Selling and
Administrative
Expenses 267,568 269,313
Restructuring Charges - -
Nonrecurring Charge - -
- ----------------- ----------- ----------
Operating Income
(Loss) 165,291 194,682
Interest Expense - Net (53,216) (42,190)
- ----------------- ------------ ---------
Income (Loss) before JOY
Merger Costs, Provision
(Credit) for Income Taxes
and Minority Interest 112,075 152,492
JOY Merger Costs - -
Provision (Credit) for
Income Taxes (including
credit for
$6,075 relating to JOY
merger costs) 42,634 52,781
Minority Interest (9,277) (15,509)
- ------------------ ------------ ----------
Income (Loss) From
Continuing Operations
(after deducting $11,384,
net of applicable income
taxes, related to JOY
merger costs) 60,164 84,202
Income (Loss) from and
(Net Loss) on Sale of
Discontinued Operations,
net of applicable income
taxes 9,465 7,568
Extraordinary Loss on
Retirement of
Debt, net of applicable
income taxes (22,816) -
Cumulative Effect of
Accounting
Change, net of applicable
income taxes and minority
interest - -
- -------------------- ------------- -----------
Net Income (Loss)
before Preferred
Stock Dividend
Requirements 46,813 91,770
Preferred Stock
Dividend
Requirements (10,866) (11,804)
- ------------------- ------------ -------------
Net Income (Loss)
applicable
to Common
Shareholders $ 35,947 $ 79,966
- -------------------- ============ ===========
Earnings (Loss) per
Share Income (loss)
from continuing
operations (After
deducting
$0.24 per share
related to JOY
Merger Costs) $ 1.17 $ 1.72
Income (loss) from
and (net loss)
on sale of
discontinued operations 0.23 0.18
Extraordinary loss on
retirement of debt (0.54) -
Cumulative effect of
accounting change - -
- --------------------- ---------- -----------
Net Income (Loss) Per
Common Share $ 0.86 $ 1.90
============ =========
BALANCE SHEET DATA
Total assets 2,109,605 2,135,627
Working capital 572,751 536,301
Long-term obligations (1) 608,301 540,741
Shareholders' equity 610,072 492,924
Debt to capitalization
ratio (2) 48.0% 51.9%
</TABLE>
<PAGE>
(1) Includes amounts classified as current liabilities.
(2) The debt to capitalization ratio is defined as the sum of short-term
notes payable, long-term debt (including current portion) and
capitalized lease obligations divided by the sum of short-term notes
payable, long-term debt (including current portion) and capitalized
lease obligations, after tax liability for postretirement benefits,
minority interest and shareholders' equity, excluding the Stock
Employee Compensation Trust ("SECT").
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges for the Company is defined as
income from continuing operations before provision (credit) for income
taxes and minority interest plus interest expense (including amortization of
debt issuance expense), the portion of rental expense which represents
interest (deemed to be one-third of rentals) and dividends received on
less-than-fifty-percent-owned companies, reduced (increased) by equity income
(loss) recorded on less-than-fifty-percent-owned companies, divided by
fixed charges. Fixed charges include interest expense (including
amortization of debt issuance expense),the portion of rental expense which
represents interest and the preferred dividend requirements, if any.
Three Months Ended Fiscal Years Ended October 31,
1/31/96 1/31/95 1995 1994 1993 1992 1991
Ratio of
Earnings
to Fixed
Charges: 3.26 1.33 3.60 1.87 - (1) 2.05 2.40
(1) Earnings did not cover fixed charges by $47,437 in 1993.
DESCRIPTION OF SECURITIES
The following descriptions set forth certain general terms and
provisions of the Securities to which any Prospectus Supplement may
relate. The particular terms and provisions of the series of Securities
offered by a Prospectus Supplement, and the extent to which such general
terms and provisions described below may apply thereto, will be described
in the Prospectus Supplement relating to such series of Securities.
The Securities are to be issued in one or more series under an Indenture
dated as of March 1, 1992, as supplemented by a First Supplemental
Indenture dated as of June 12, 1992 (collectively, the "Indenture'), between
the Company and First Trust of Illinois, National Association (successor to
Continental Bank, National Association), as Trustee (the "Trustee"). The
following summaries of certain provisions of the Securities and the
Indenture do not purport to be complete and are subject to, and are
qualified in their entirety by reference to, all provisions of the Indenture,
including the definition therein of certain terms. Particular sections of the
Indenture which are relevant to the discussion are cited parenthetically.
Wherever particular sections or defined terms of the Indenture are referred
to, it is intended that such sections or defined terms shall be incorporated
herein by reference.
General
The Indenture does not limit the amount of Securities which can be
issued thereunder or the amount or type of debt securities which may
otherwise be issued by the Company and additional debt securities may,
without the consent of the holders of outstanding Securities, be issued
under the Indenture up to the aggregate principal amount which may be
authorized from time to time by, or pursuant to a resolution of, the
Company's Board of Directors or by a supplemental indenture. At January
31, 1996, the aggregate principal amount of Securities outstanding under
the Indenture was $300,000,000. Reference is made to the Prospectus
Supplement for the following terms, if applicable, of the particular series of
Securities being offered thereby: (1) the title
<PAGE>
of the Securities of the series; (2) any limit upon the aggregate principal
amount of the Securities of the series; (3) whether the Securities of the
series will be issuable in registered or bearer form or both, any restrictions
applicable to the offer, sale or delivery of Securities in bearer form ("bearer
Securities") and whether and the terms upon which bearer Securities will
be exchangeable for Securities in registered form ("registered Securities")
and vice versa; (4) the date as of which any bearer Securities of the series
and any temporary global Security shall be dated if other than the date of
issuance of the first Security of the series; (5) the method of paying interest
with respect to any portion of a temporary bearer Security in the form of a
global note; (6) the date or dates on which the principal of the Securities of
the series will be payable; (7) the rate or rates (or manner of calculation
thereof), if any, at which the Securities of the series will bear interest, the
date or dates from which any such interest will accrue and on which such
interest will be payable, and, with respect to Securities of the series in
registered form, the record date for the interest payable on any interest
payment date, whether and under what circumstances the Company will
pay additional amounts on the Securities of the series held by a person who
is not a U.S. person in respect of taxes or similar charges withheld or
deducted and, if so, whether the Company will have the option to redeem
such Securities rather than pay such additional amounts; (8) the place or
places where the principal of and interest or additional amounts, if any, on
the Securities of the series will be payable; (9) the period or periods within
which, the price or prices at which and the terms and conditions upon
which the Securities of the series may be redeemed at the option of the
Company; (10) any redemption or sinking fund provisions; (11) the
denominations in which Securities of the series shall be issuable; (12) if
other than the principal amount thereof, the portion of the principal amount
of Securities of the series which will be payable upon declaration of
acceleration of the maturity thereof; (13) the currencies in which payments
of interest, premium or principal are payable with respect to such
Securities; and (14) any additional provisions or other terms not
inconsistent with the provisions of the Indenture, including any terms which
may be required by or advisable under United States laws or regulations or
advisable in connection with the marketing of Securities of such series.
(Sections 3.1 and 3.2.) To the extent not described herein, principal and
interest, if any, will be payable, and the Securities of a particular series
will be transferable, in the manner described in the Prospectus Supplement
relating to such series. "Principal' when used herein includes, when
appropriate, the premium, if any, on the Securities.
Securities of any series may be issued as registered Securities or bearer
Securities or both as specified in the terms of the series. Additionally,
Securities of any series may be represented by one or more global notes
registered in the name of a depositary's nominee and, if so represented,
beneficial interests in such global note will be shown on, and transfers
thereof will be effected only through, records maintained by a designated
depositary and its participants. Unless otherwise indicated in the
Prospectus Supplement, registered Securities will be issued in the
denomination of $1,000 and integral multiples thereof and bearer Securities
will be issued in the denomination of $5,000 and integral multiples thereof.
If appropriate, federal income tax consequences applicable to a series
of Securities will be described in the Prospectus Supplement relating
thereto.
Exchange of Securities
Registered Securities may be exchanged for an equal aggregate
principal amount of registered Securities of the same series and date of
maturity in such authorized denominations as may be requested upon
surrender of the registered Securities at an agency of the Company
maintained for such purpose and upon fulfillment of all other requirements
of such agent. (Section 3.5.)
To the extent permitted by the terms of a series of Securities authorized
to be issued in registered form and bearer form, bearer Securities may be
exchanged for an equal aggregate principal amount of registered or
<PAGE>
bearer Securities of the same series and date of maturity in such authorized
denominations as may be requested upon surrender of the bearer Securities
with all unpaid coupons relating thereto at an agency of the Company
maintained for such purpose and upon fulfillment of all other requirements
of such agent. (Section 3.5.)
Limitation Upon Liens
The Indenture provides that the Company will not, and will not permit
any Restricted Subsidiary (as defined below) to create, incur, issue, assume
or guarantee any indebtedness for borrowed money ("indebtedness")
secured by a mortgage, security interest, pledge or lien (each a "Lien") of
or upon any Principal Manufacturing Property (as defined below), or any
shares of capital stock or indebtedness of any Restricted Subsidiary (as
defined below), whether owned at the date of the Indenture or thereafter
acquired, without effectively providing that the Notes and any other
Securities issued under the Indenture shall be secured by such Lien equally
and ratably with (or, at the option of the Company, prior to) such
indebtedness, so long as such indebtedness shall be so secured. The
foregoing restrictions, however, shall not apply to (i) taxes, assessments or
governmental charges which are not yet delinquent, or are being diligently
contested in good faith and by appropriate proceedings; (ii) governmental
Liens or Liens imposed by law, such as carriers', warehousemen's,
mechanics', materialmen's and vendors' liens for sums not yet due or which
are being diligently contested in good faith and by appropriate proceedings;
(iii) existing Liens; (iv) any Lien on any property acquired, constructed or
substantially improved by (or of or upon any shares of capital stock or
indebtedness acquired by) the Company or any Restricted Subsidiary after
the date of the Indenture and created contemporaneously with or within
twelve (12) months of such acquisition, construction or improvement to
secure or provide for all or a portion of the purchase price of such property
or for such construction or improvement; (v) Liens in connection with
industrial revenue bonds, pollution control bonds or similar secured
financings; (vi) performance of bids, tenders, contracts (other than for the
repayment of or in connection with borrowed money), or for purposes of
like general nature in the ordinary course of the Company's business; (vii)
Liens in favor of any customer to the extent necessary to secure partial,
progress, advance or other payments for goods produced or services
rendered to such customer in the ordinary course of business; (viii)
attachment, judgment and other similar Liens arising in connection with
court proceedings, provided the execution or other enforcement of such
Liens is effectively stayed within thirty (30) days after the Company or a
Restricted Subsidiary receives notice thereof and the claims secured
thereby are being actively contested in good faith by appropriate
proceedings and against which an adequate reserve has been established;
(ix) any Lien existing on the property, shares of stock or indebtedness of a
Person at the time such Person becomes a Restricted Subsidiary of the
Company or is merged into or consolidated with the Company or a
Restricted Subsidiary or at the time of a sale, lease or other disposition of
the properties of any Person as an entirety or substantially as an entirety to
the Company or a Restricted Subsidiary (whether or not such Lien is
assumed by the Company or a Restricted Subsidiary); (x) Liens on the
property of a Restricted Subsidiary to secure indebtedness for borrowed
money owed to the Company or another Subsidiary, (xi) in the case of
leased properties, the terms and conditions of leases or subleases creating
the leasehold estate and, in the case of all real properties, title exceptions
affecting the underlying fee simple estate; or (xii) Liens created in
connection with the extension or renewal of any secured indebtedness or
other obligations permitted under the terms of the Indenture.
Notwithstanding the restrictions outlined above, the Company or any
Restricted Subsidiary may, without equally and ratably securing the
Securities, issue, assume or guarantee indebtedness secured by a Lien not
excepted under clauses (i) through (xii) above, if the aggregate amount of
such indebtedness, together with all other indebtedness secured by Liens
not so excepted, does not at the time exceed 10% of Consolidated Net
Tangible Assets (as defined below).
The term "Consolidated Net Tangible Assets" means, as of any
particular time, the total amount of
<PAGE>
assets (less applicable reserves) after deducting therefrom (i) all current
liabilities (excluding any thereof which are by their terms extendible or
renewable at the option of the obligor thereon to a time more than twelve
(12) months after the time as of which the amount thereof is being
computed and excluding current maturities of long-term indebtedness), and
(ii) all goodwill, trade names, trademarks, patents, unamortized debt
discount and expense and other like intangible assets, all as shown in the
audited consolidated balance sheet of the Company and its Subsidiaries
contained in the Company's then most recent annual report to stockholders.
The term "Principal Manufacturing Property" means any manufacturing
plant (including fixtures and improvements but excluding equipment, leases
and other contract rights which might otherwise be deemed real property)
owned by the Company, or any Restricted Subsidiary, whether owned on
the date of the Indenture or thereafter, provided each such plant has a
gross book value (without deduction for any depreciation reserves) at the
date as of which the determination is being made of in excess of two
percent (2%) of Consolidated Net Tangible Assets, other than any such
plant or portion thereof which, in the opinion of the Board of Directors
(evidenced by a Board Resolution), is not of material importance to the
business conducted by the Company and its Subsidiaries taken as a whole.
The term "Restricted Subsidiary" means each Subsidiary (i)
substantially all the property of which is located, or substantially all the
business of which is conducted, within the United States excluding its
territories and possessions, and (ii) which owns or leases a Principal
Manufacturing Property.
Additional Restrictive Covenants
Reference is made to the Prospectus Supplement relating to a particular
series of Securities for any additional restrictive covenants which may
relate to such series.
Amendment and Waiver
Subject to certain exceptions, the Indenture or the Securities may be
amended or supplemented by the Company and the Trustee with the
written consent of the Holders of not less than 66-2/3% in principal amount
of the outstanding Securities of each series affected by the amendment or
supplement (with each series voting as a class) or compliance with any
provision may be waived with the consent of the Holders of a majority in
principal amount of the outstanding Securities of each series affected by
such waiver (with each series voting as a class). However, without the
consent of each Holder affected, an amendment or waiver may not, among
other things, (i) reduce the principal of or change the Stated Maturity of
any Security; (ii) reduce the rate of or change the time for payment of
interest on any Security; (iii) reduce any premium payable upon redemption
of any Security; (iv) change the place of payment where any Security or
any interest thereon is payable; (v) waive a default in the payment of the
principal of or interest on any Security (Section 5.13); (vi) make any
Security payable in money other than that stated in the Security; (vii)
impair the right to institute suit on or after the Stated Maturity Date of any
Security for the enforcement of any payment on or with respect to such
Security; or (viii) reduce the percentage in principal amount of Securities
whose Holders must consent to a supplemental indenture, amendment or
any waiver of compliance with certain provisions of the Indenture or
certain defaults thereunder and their consequence. (Section 9.2.) The
Indenture may be amended or supplemented without the consent of any
Holder, among other things, (i) to provide for the assumption of all the
obligations of the Company under the Securities and any coupons
appertaining thereto and under the Indenture by any corporation in
connection with a merger, consolidation, or transfer or lease of the
Company's property and assets substantially as an entirety, as provided for
in the Indenture; (ii) to add to the covenants of the Company, for the
benefits of the Holders of all or any series of Securities; (iii) to provide for
bearer Securities that are registrable as to principal or to change or
eliminate in certain circumstances any restrictions
<PAGE>
on the payment of principal (and interest in the case of bearer Securities)
on the Securities; (iv) to provide for uncertificated Securities in addition to
or in place of certificated Securities; (v) to make any change that does not
adversely affect the rights of any Holder of Securities; (vi) to provide for
the issuance of and establish the form and terms and conditions of a series
of Securities or to establish the form of any certifications required to be
furnished pursuant to the terms of the Indenture or any series of Securities;
(vii) to cure any ambiguity, defect or inconsistency in the Indenture or in
the Securities of any series; (viii) to evidence the appointment of a
successor Trustee; or (ix) to secure the Securities. (Section 9.1.)
Successor Entity
The Company may consolidate with, or merge into, or be merged into,
or transfer or lease its property and assets substantially as an entirety to,
any other corporation, if (i) the Company is the continuing corporation, or
the successor is a U.S. corporation which assumes all the obligations of the
Company under the Securities and any coupons appertaining thereto and
under the Indenture, and (ii) after giving effect thereto, no default under
the Indenture shall have occurred and be continuing. Thereafter, except in
the case of a lease, all such obligations of the Company shall terminate.
(Section 8.1 and Section 8.2.)
Defeasance, Satisfaction and Discharge of the Securities Prior to Maturity
Defeasance. Unless provided for otherwise in the applicable
Prospectus Supplement, if the Company shall deposit with the Trustee, in
trust, at or before maturity, lawful money or direct obligations of the
United States of America or obligations the principal of and interest on
which are guaranteed by the United States of America in such amounts and
maturing at such times that the proceeds of such obligations to be received
upon the respective maturities and interest payment dates of such
obligations will provide funds sufficient, in the opinion of a
nationally-recognized firm of independent public accountants chosen by the
Company, to pay when due the principal of and interest on the Securities to
maturity (such money or direct obligations of, or obligations guaranteed by, the
United States of America initially deposited or equivalent cash or securities
subsequently exchanged therefor, to be held as security for the payment of
such principal and interest), then the Company may omit to comply with
certain of the terms of the Indenture as they relate to the Securities,
including the restrictive covenants described herein under the caption
"Description of Securities-Limitation Upon Liens" and the Event of Default
described in clause (iv) under the caption "Description of Securities-Events
of Default." Defeasance of the Securities would be subject to the
satisfaction of certain conditions, including, among others, (i) the absence
of an Event of Default at the date of the deposit, (ii) the perfection of the
Holders' interest in such deposit and (iii) the condition that such deposit
would not result in a breach of a material instrument by which the
Company is bound. (Section 4.2.)
Satisfaction and Discharge. Upon the deposit of money or securities
contemplated above and the satisfaction of certain conditions, the
Company may omit to comply with its obligations duly and punctually to
pay the principal of and interest on the Securities, or with any Events of
Default with respect thereto, and thereafter the Holders of Securities shall
be entitled only to payment out of the money or securities deposited with
the Trustee. Such conditions may include, among others, (i) except in
certain limited circumstances involving a deposit made within one year of
maturity, (A) the absence of an Event of Default at the date of deposit or
on the 91st day thereafter, and (B) the delivery to the Trustee by the
Company of an opinion of nationally-recognized tax counsel to the effect
that Holders of Securities will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit and discharge and
will be subject to federal income tax on the same amounts and in the same
manner and at the same times as would have been the case if such deposit
and discharge had not occurred, and (ii) the receipt by the Company of an
opinion of counsel to the effect that such satisfaction and discharge will not
result in a violation of the rules of any nationally-recognized
<PAGE>
exchange on which the Securities are listed. (Section 4.1.)
Events of Default
The following events are defined in the Indenture as "Events of
Default" with respect to a series of Securities: (i) default in the payment of
interest on any Security of such series which continues for 30 days; (ii)
failure by the Company for two business days after notice to it to pay the
principal of any Security of such series when due; (iii) failure by the
Company for two business days after notice to it to pay any sinking fund
installment required to be made by the Company with respect to any series
of Securities; (iv) failure by the Company for 60 days after notice to it to
comply with any of its other agreements with respect to the Securities of
such series in the Indenture or in any supplemental indenture under which
the Securities of that series may have been issued; (v) certain events of
bankruptcy or insolvency and (vi) acceleration of any indebtedness for
money borrowed by the Company or any Restricted Subsidiary in excess of
$10,000,000 in aggregate principal amount, if such acceleration is not
rescinded or annulled within 10 days after written notice has been provided
to the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in aggregate principal amount of outstanding
Securities. (Section 5.1.) If an Event of Default occurs with respect to the
Securities of any series and is continuing, the Trustee or the Holders of at
least 25% in principal amount of all of the outstanding Securities of that
series may declare the principal (or, if the Securities of that series are
original issue discount Securities, such portion of the principal amount as
may be specified in the terms of that series) of, and any accrued interest on,
all the Securities of that series to be due and payable. Upon such
declaration, such principal (or, in the case of original issue discount
Securities, such specified amount) and all accrued interest thereon shall be
due and payable immediately. (Section 5.2.)
Holders of Securities may not enforce the Indenture or the Securities,
except as provided in the Indenture. (Section 5.7.) The Trustee may
require indemnity satisfactory to it before it enforces the Indenture or the
Securities. (Section 6.3(e).) Subject to certain limitations, Holders of a
majority in principal amount of the Securities of each series affected (with
each series voting as a class) may direct the Trustee in its exercise of any
trust power. (Section 5.12.) The Trustee may withhold from Holders
notice of any continuing default (except a default in payment of principal or
interest) if it determines in good faith that withholding notice is in their
interests. (Section 6.2.) The Company is not required under the Indenture
to furnish any periodic evidence as to the absence of default or as to
compliance with the terms of the Indenture.
BOOK-ENTRY ONLY SYSTEM
Securities of any series may be issued initially in the form of one or
more global securities under a book-entry only system operated by a
securities depository. Unless otherwise specified in the Prospectus
Supplement, The Depository Trust Company ("DTC") will act as securities
depository for Securities, which would be registered in the name of CEDE
& Co., as registered securityholder and nominee for DTC. Individual
purchases of Book-Entry Interests (as herein defined) in any such
Securities will be made in book-entry form. Purchasers of Book-Entry
Interests in such Securities will not receive certificates representing their
interests in such Securities. So long as CEDE & Co., as nominee of DTC,
is the security holder, references herein to holders of Securities or
registered owners will mean CEDE & Co., rather than the owners of
Book-Entry Interests in Securities.
DTC is a limited purpose trust company organized under the banking
laws of the State of New York and a "banking organization" within the
meaning of that law, a member of the Federal Reserve System, a "clearing
corporation" within the meaning of the New York Uniform Commercial
Code, and a "clearing agency" registered pursuant to the provisions of
Section 17A of the Exchange Act. DTC holds securities
<PAGE>
deposited by its participants (the "DTC Participants") and facilitates the
settlement of securities transactions among DTC Participants in such
securities through electronic computerized book-entry changes in accounts
of the DTC Participants, thereby eliminating the need for physical
movement of securities certificates. Direct DTC Participants include
securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations, some of whom (including,
possibly, the underwriters with respect to the Securities), together with the
New York Stock Exchange, Inc., the American Stock Exchange, Inc. and
the National Association of Securities Dealers, Inc., own DTC. Access to
the DTC system is also available to others such as banks, brokers, dealers
and trust companies that clear through or maintain a custodial relationship
with a DTC Participant, either directly or indirectly (the "Indirect
Participants").
DTC Participants purchasing Book-Entry Interests (as defined below)
in any Securities will not receive certificates. Each DTC Participant will
receive a credit balance in the records of DTC in the amount of such DTC
Participant's interest in such Securities, which will be confirmed in
accordance with DTC's standard procedures. The ownership interest of
each actual purchaser of a Book-Entry Interest in a Security (the "Book-Entry
Interests") will be recorded through the records of the DTC
Participant or through the records of the Indirect Participant. Owners of
Book-Entry Interests should receive from the DTC Participant or Indirect
Participant a written confirmation of their purchase providing details of the
Book-Entry Interests acquired. Transfers of Book-Entry Interests will be
accomplished by book entries made by the DTC Participants or Indirect
Participants who act on behalf of the owners of Book-Entry Interests.
Owners of Book-Entry Interests will not receive certificates representing
their ownership of Book-Entry Interests with respect to any Securities
except as described below upon the resignation of DTC.
Under the Indenture, payments made by the Trustee to DTC or its
nominee will satisfy the Company's obligations under the Indenture, to the
extent of the payments so made. Owners of Book-Entry Interests will not
be or be considered by the Company or the Trustee to be, and will not have
any rights as, holders of Securities under the Indenture.
NEITHER THE COMPANY NOR THE TRUSTEE UNDER THE
INDENTURE WILL HAVE ANY RESPONSIBILITY OR
OBLIGATION TO ANY DTC PARTICIPANT, INDIRECT
PARTICIPANT OR ANY OWNER OF A BOOK-ENTRY INTEREST
OR ANY OTHER PERSON NOT SHOWN ON THE REGISTRATION
BOOKS OF THE TRUSTEE AS BEING A HOLDER OF SECURITIES
WITH RESPECT TO: (1) ANY SECURITIES; (2) THE ACCURACY
OF ANY RECORDS MAINTAINED BY DTC OR ANY DTC
PARTICIPANT OR INDIRECT PARTICIPANT; (3) THE PAYMENT
BY DTC OR ANY DTC PARTICIPANT OR INDIRECT PARTICIPANT
OF ANY AMOUNT DUE TO ANY OWNER OF A BOOK-ENTRY
INTEREST IN RESPECT OF THE PRINCIPAL OR REDEMPTION
PRICE OF OR INTEREST ON SUCH SECURITIES; (4) THE
DELIVERY BY DTC OR ANY DTC PARTICIPANT OR INDIRECT
PARTICIPANT OF ANY NOTICE TO ANY OWNER OF A BOOK-ENTRY
INTEREST WHICH IS REQUIRED OR PERMITTED UNDER
THE TERMS OF THE INDENTURE TO BE GIVEN TO HOLDERS OF
SECURITIES; (5) THE SELECTION OF THE OWNERS OF A BOOK-ENTRY
INTEREST TO RECEIVE PAYMENT IN THE EVENT OF
ANY PARTIAL REDEMPTION OF ANY SECURITIES; OR (6) ANY
CONSENT GIVEN OR OTHER ACTION TAKEN BY DTC OR ITS
NOMINEE AS HOLDER OF SECURITIES.
Principal and redemption price of, and interest payments on, Securities
registered in the name of DTC or its nominee will be made to DTC or such
nominee, as registered owner of such Securities. DTC is responsible for
disbursing such payments to the appropriate DTC Participants and such
DTC Participants, and any Indirect Participants, are in turn responsible for
disbursing the same to the owners of Book-Entry
<PAGE>
Interests. Unless it has reason to believe it will not receive payment,
DTC's current practice is to credit the accounts of the DTC Participants on
a payment date in accordance with their respective holdings shown on the
records of DTC. Payments by DTC Participants and Indirect Participants
to owners of Book-Entry Interests will be governed by standing
instructions and customary practices, as is now the case with securities held
for the accounts of customers in bearer form or registered in "street name",
and will be the responsibility of such DTC Participant or Indirect
Participant and not of DTC, the Company or the Trustee, subject to any
statutory and regulatory requirements as may be in effect from time to
time.
DTC Participants and Indirect Participants carry the "position" of the
ultimate Book-Entry Interest owner on their records, and will be
responsible for providing information to the ultimate Book-Entry Interest
owner as to the Securities in which the Book-Entry Interest is held, debt
service payments received, and other information. Each person for whom a
DTC Participant or Indirect Participant acquires an interest in Securities, as
nominee, may desire to make arrangements with such DTC Participant or
Indirect Participant to receive a credit balance in the records of such DTC
Participant or Indirect Participant, to have all notices of redemption or
other communications to or by DTC which may affect such persons
forwarded in writing by such DTC Participant or Indirect Participant, and
to have notification made of all debt service payments.
Purchases, transfers and sales of Book-Entry Interests by the ultimate
Book-Entry Interest owners may be made through book entries made by
DTC Participants or Indirect Participants or others who act for the ultimate
Book-Entry Interest owner. The Trustee, the Company and the agents,
dealers and underwriters, as such, have no role in those purchases, transfers
or sales.
Owners of Book-Entry Interests may be charged a sum sufficient to
cover any tax, fee, or other governmental charge that may be imposed in
relation to any transfer or exchange of a Book-Entry Interest.
The Trustee will recognize and treat DTC (or any successor securities
depository) or its nominee as the holder of Securities registered in its name
or the name of its nominee for all purposes, including payment of debt
service, notices, enforcement of remedies and voting. Under DTC's current
practice, a proxy will be given to the DTC Participants holding Book-Entry
Interests in Securities in connection with any matter on which holders of
such Securities are asked to vote or give their consent. Crediting of debt
service payments and transmittal of notices and other communications by
DTC to DTC Participants, by DTC Participants to Indirect Participants and
by DTC Participants and Indirect Participants to the ultimate Book-Entry
Interest owners are the responsibility of those persons and will be handled
by arrangements among them and are not the responsibility of the Trustee,
the Company or any agent, dealer or underwriter, as such.
The Trustee, so long as a book-entry system is used for any series of
Securities, will send any notice of redemption and any other notices
required by the Indenture to be sent to holders of such Securities, only to
DTC (or such successor securities depository) or its nominee. Any failure
of DTC to advise any DTC Participant, or of any DTC Participant or
Indirect Participant to notify the Book-Entry Interest owner, of any such
notice and its content or effect will not affect the validity of the redemption
of the Securities called for redemption, or any other action premised on
that notice. In the event of a call for redemption, the Trustee's notification
to DTC will initiate DTC's standard call process, and, in the event of a
partial call, its lottery process by which the call will be randomly allocated
to DTC Participants holding positions in the Securities to be redeemed.
When DTC and DTC Participants allocate the call for redemption, the
owners of the Book-Entry Interests that have been called should be notified
by the broker or other person responsible for maintaining the records of
those interests and subsequently credited by that person with the proceeds
once such Securities are redeemed.
<PAGE>
The Company, the Trustee and any dealer, underwriter or agent cannot
and do not give any assurances that DTC, DTC Participants or others will
distribute payments of debt service on Securities made to DTC or its
nominee as the registered owner, or any redemption or other notices, to the
Book-Entry Interest owners, or that they will do so on a timely basis, or
that DTC will serve and act in the manner described in this Prospectus.
The Company understands that the current "Rules" applicable to DTC
are on file with the Commission, and that the current "Procedures" of DTC
to be followed in dealing with DTC Participants are on file with DTC.
If DTC is at any time unwilling or unable to continue as depository, and
a successor depository is not appointed by the Company within 90 days,
the Company will issue individual certificates to owners of Book-Entry
Interests in exchange for the Securities held by DTC or its nominee. In
such instance, an owner of a Book-Entry Interest will be entitled to
physical delivery of certificates equal in principal amount to such Book-Entry
Interest and to have such certificates registered in its name.
Individual certificates so issued will be issued in denominations of $1,000
or any multiple thereof.
Neither the Company, the Trustee nor any dealer, agent or underwriter
makes any representation as to the accuracy of the above description of
DTC's business, organization and procedures, which is based upon
information furnished by DTC.
PLAN OF DISTRIBUTION
The Company may sell the Securities being offered hereby: (i) directly
to purchasers, (ii) through agents, (iii) through underwriters, (iv) through
dealers or (v) through a combination of any such methods of sale.
The distribution of the Securities may be effected from time to time in
one or more transactions either: (i) at a fixed price or prices, which may be
changed, or (ii) at market prices prevailing at the time of sale, or (iii) at
prices related to such prevailing market prices, or (iv) at negotiated prices.
Offers to purchase Securities may be solicited directly by the Company
or by agents designated by the Company from time to time. Any such
agent, which may be deemed to be an underwriter as that term is defined in
the Securities Act, involved in the offer or sale of the Securities in respect
of which this Prospectus is delivered will be named, and any commissions
payable by the Company to such agent will be set forth, in the Prospectus
Supplement. Unless otherwise indicated in the Prospectus Supplement,
any such agent will be acting on a reasonable best efforts basis for the
period of its appointment.
If an underwriter or underwriters are used in the sale, the Company will
execute an underwriting agreement with such underwriters at the time of
sale to them and the names of the underwriters and the terms of the
transaction will be set forth in the Prospectus Supplement, which will be
used by the underwriters to make resales of the Securities in respect of
which this Prospectus is delivered to the public.
If a dealer is used in the sale of the Securities in respect of which this
Prospectus is delivered, the Company will sell such Securities to the dealer
as principal. The dealer may then resell such Securities to the public at
varying prices to be determined by such dealer at the time of resale.
In the event the Securities are not listed on a national securities
exchange, certain broker-dealers may
<PAGE>
make a market in the Securities, but will not be obligated to do so and may
discontinue any market making at any time without notice. No assurance
can be given that any broker-dealer will make a market in the Securities or
as to the liquidity of the trading market for the Securities, whether or not
the Securities are listed on a national securities exchange. The Prospectus
Supplement with respect to the Securities will state, if known, whether or
not any broker-dealer intends to make a market in the Securities. If no
such determination has been made, the Prospectus Supplement will so
state.
If so indicated in the Prospectus Supplement, the Company will
authorize agents, underwriters or dealers to solicit offers by certain
specified institutions to purchase Securities from the Company at the public
offering price set forth in the Prospectus Supplement pursuant to delayed
delivery contracts providing for payment and delivery on a specified date in
the future. Such contracts will be subject only to those conditions set forth
in the Prospectus Supplement and the Prospectus Supplement will set forth
the commission payable for the solicitation of such contracts.
Underwriters, dealers, agents and other persons may be entitled, under
agreements which may be entered into with the Company, to
indemnification against certain civil liabilities, including liabilities under
the Securities Act. Agents, underwriters and dealers may be customers of,
engage in transactions with, or perform services for the Company in the
ordinary course of business.
The place and time of delivery for the Securities in respect of which this
Prospectus is delivered will be set forth in the accompanying Prospectus
Supplement.
LEGAL MATTERS
Unless otherwise indicated in the Prospectus Supplement, certain legal
matters in connection with the Securities offered hereby will be passed
upon for the Company by the General Counsel or Senior Corporate
Counsel to the Company. The General Counsel and Senior Corporate
Counsel are employees of the Company and owned as of January 31, 1996,
directly and beneficially, in the aggregate less that 0.3% of the Company's
common stock outstanding as of such date.
EXPERTS
The financial statements incorporated in this Prospectus by reference to
the Company's Annual Report on Form 10-K for the year ended October
31, 1995 and the Company's Current Report on Form 8-K dated December
8, 1995 except as they relate to Joy Technologies Inc. for the years ended
February 25, 1994 and February 26, 1993, have been audited by Price
Waterhouse LLP, independent accountants, and, insofar as they relate to
Joy Technologies Inc. for the years ended February 24, 1994 and February
26, 1993, by Arthur Andersen LLP, independent accountants, whose
reports thereon are incorporated by reference herein. Such financial
statements of the Company, except for the financial statements of Joy
Technologies Inc. for each of the two years in the period ended February
25, 1994, have been so incorporated in reliance on the report of Price
Waterhouse LLP given on the authority of such firm as experts in auditing
and accounting.
The financial statements and schedules of Joy Technologies Inc. for
each of the two years in the period ended February 25, 1994 incorporated
by reference in this Prospectus and elsewhere in the Registration Statement
have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their reports with respect thereto, and are
incorporated herein in reliance upon the authority of that firm as experts in
accounting and auditing in giving said reports.
The financial statements of Dobson Park Industries plc incorporated in
this Prospectus by reference to the Company's Current Report on Form 8-K
dated December 4, 1995, have been so incorporated in reliance on the
report of Price Waterhouse, independent accountants given on the
authority of said firm as experts in auditing and accounting.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
An itemized statement of the amount of all expenses, other than
underwriting discounts and commissions, incurred by the Registrant in
connection with the issuance and distribution of the Securities follows:
Securities and Exchange Commission Registration Fee $ 68,966
Trustee's Fees and Expenses 20,000
Printing and Engraving Expenses 5,000
Rating Agency Fees 180,000
Accounting Fees and Expenses 8,000
Legal Fees and Expenses 15,000
Blue Sky and Legal Investment Fees and Expenses 10,000
Miscellaneous Expenses 15,000
Total $241,966
All of the above, other than the Securities and Exchange Commission
registration fee, are estimated.
Item 15. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware
permits indemnification of directors, officers, employees and agents of
corporations under certain conditions and subject to certain limitations.
Section 14 of Article III of the Company's bylaws provides for
indemnification of any director, officer, employee or agent of the
Registrant, or any person serving in the same capacity in any other
enterprise at the request of the Registrant, under certain circumstances. As
permitted by Section 102(b)(7) of the Delaware General Corporation Law,
Article 6 of the Company's Certificate of Incorporation eliminates the
liability of directors of the Registrant under certain circumstances for
breaches of fiduciary duty to the Company and its stockholders.
The Registrant is insured against certain liabilities which it may incur by
reason of Article III, Section 14, of its Bylaws. In addition, officers and
directors are insured, at the expense of the Registrant, against certain
liabilities which might arise out of their employment and which might not
be subject to indemnification under the Bylaws.
Item 16. Exhibits.
Exhibit
Number Description of Exhibits
--------- ---------------------------
1.1 Form of Distribution Agreement relating to the offer and sale of
debt securities of the Registrant, including a list of terms to be
included in the Terms Agreement
4.1 Indenture dated as of March 1, 1992 between the Registrant
and First Trust of Illinois, National Association (successor to
Continental Bank, National Association), as Trustee (the
<PAGE>
"Trustee") (incorporated by reference to Exhibit 4(f) to Annual
Report of Harnischfeger Industries, Inc. on Form 10-K for the
year ended October 31, 1992, File No. 1-9299)
4.2 First Supplemental Indenture dated as of June 12, 1992
between the Registrant and Trustee (incorporated by reference
to Exhibit 4(g) to Annual Report of Harnischfeger Industries,
Inc. on Form 10-K for the year ended October 31, 1992, File
No. 1-9299)
4.3 Letter dated as of April 4, 1996 of Trustee accepting
appointment as successor trustee
4.4 Form of Fixed Rate Note (incorporated by reference to Exhibit
4.3 to Registration Statement on Form S-3, File No. 33-51436)
4.5 Form of Floating Rate Note (incorporated by reference to
Exhibit 4.4 to Registration Statement on Form S-3, File No.
33-51436)
5.1 Opinion of Eric B. Fonstad, Senior Corporate Counsel to the
Registrant
12.1 Computation of Ratio of Earnings to Fixed Charges
23.1 Consent of Price Waterhouse LLP
23.2 Consent of Arthur Andersen LLP
23.3 Consent of Price Waterhouse
23.4 Consent of Eric B. Fonstad, Esq. (contained in Exhibit 5.1)
24.1 Powers of Attorney (included in the signature page)
25.1 Form T-1, Statement of Eligibility under the Trust Indenture
Act of 1939 of the Trustee (separately bound)
Item 17. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933, as amended, unless the
information required to be included in such post-effective
amendment is contained in a periodic report filed by the
Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended, and incorporated
herein by reference;
(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 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
<PAGE>
range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20
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.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended, 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 in the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended,
each filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934, as amended, 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.
(h) Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended, may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the provisions described
in Item 15 above, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act of 1933, as
amended, and is, therefore, unenforceable. In the event 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 against the Registrant 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 of 1933, as amended, and will be
governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
Harnischfeger Industries, Inc. certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing this Registration
Statement 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 Brookfield, State of Wisconsin, on April 10, 1996.
HARNISCHFEGER INDUSTRIES, INC.
By: /s/ K. Thor Lundgren
------------------------------------------------
K. Thor Lundgren
Executive Vice President, Law and
Government Affairs
Each of the undersigned hereby constitutes and appoints each of
Jeffery T. Grade, Francis M. Corby, Jr. and K. Thor Lundgren his or her
true and lawful attorney-in-fact and agent, for him or her and in his or her
behalf and his or her name, place and stead, in any and all capacities, to
sign, execute and file any amendment or amendments to this Registration
Statement, with all exhibits and any and all documents and supplementary
information required to be filed with respect thereto, granting unto said
attorneys, and each of them, full power and authority to do and perform
each and every act and thing requisite and necessary to be done in order to
effectuate the same as fully to all intents and purposes as he himself or she
herself might or could do if personally present, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on April 10, 1996.
/s/Jeffery T. Grade Jeffery T. Grade
- ------------------------------------ Chairman, Chief Executive
Jeffery T. Grade Officer and Director
/s/Francis M. Corby, Jr. Francis M. Corby, Jr.
- ----------------------------------- Executive Vice President
Francis M. Corby, Jr. Finance and Administration
and Chief Financial Officer
/s/James C. Benjamin James C. Benjamin
- ------------------------------------ Vice President and Controller
James C. Benjamin and Chief Accounting Officer
/s/Donna M. Alvarado Director
- -------------------------------------
Donna M. Alvarado
/s/Larry D. Brady Director
- -------------------------------------
Larry D. Brady
/s/John D. Correnti Director
- -------------------------------------
John D. Correnti
/s/Harry L. Davis Director
- -------------------------------------
Harry L. Davis
/s/Robert M. Gerrity Director
- -------------------------------------
Robert M. Gerrity
/s/Robert B. Hoffman Director
- -------------------------------------
Robert B. Hoffman
/s/Ralph C. Joynes Director
- -------------------------------------
Ralph C. Joynes
/s/Herbert V. Kohler, Jr. Director
- -------------------------------------
Herbert V. Kohler, Jr.
/s/Jean-Pierre Labruyere Director
- -------------------------------------
Jean-Pierre Labruyere
/s/Robert F. Schnoes Director
- -------------------------------------
Robert F. Schnoes
/s/Donald Taylor Director
- -------------------------------------
Donald Taylor
EXHIBIT 1.1
HARNISCHFEGER INDUSTRIES, INC.
Debt Securities
DISTRIBUTION AGREEMENT
[Date]
[Agents]
Dear Sirs:
Harnischfeger Industries, Inc., a Delaware corporation (the
"Company"), and (the "Agents") enter into this
agreement ("Agreement") with respect to the issue and sale by the
Company of its debt securities (the "Notes"). The Notes are to be issued
pursuant to an indenture dated as of March 1, 1992, as supplemented by a
supplemental indenture dated as of June 12, 1992 (collectively, the
"Indenture"), between the Company and First Trust of Illinois, National
Association (successor to Continental Bank, National Association), as
trustee (the "Trustee"). As of the date hereof, the Company has
authorized the issuance of up to $200,000,000 aggregate principal amount
(or, if issued at an original issue discount, such greater principal amount as
shall result in an aggregate initial offering price of up to $200,000,000) of
Notes for distribution through or sale to the Agents pursuant to the terms
of this Agreement or for sale by the Company directly to purchasers on its
own behalf. It is understood, however, that the Company may from time
to time authorize the issuance of additional Notes and that such Notes may
be distributed through or sold to the Agents pursuant to the terms of this
Agreement or sold by the Company directly to purchasers on its own
behalf, all as though the issuance of such Notes were authorized as of the
date hereof.
This Agreement provides both for the sale of Notes by the Company
directly to purchasers through the Agents, in which case the Agents will
act as agents of the Company in soliciting Note purchasers, and (as may
from time to time be agreed to by the Company and the Agents) to the
Agents as principals for resale to purchasers. Additional terms of any sale
of Notes to the Agents as principals will be set out in a Terms Agreement
relating to such sale, all as more fully provided herein. No Agent is
authorized to appoint sub-agents or to engage the services of any other
broker or dealer in connection with the offer or sale of the Notes.
Subject to the terms and conditions stated herein and to the
reservation by the Company of the right to sell, solicit and accept offers to
purchase Notes directly on its own behalf, the Company hereby (i)
appoints each of the Agents to act as the agent of the Company for the
purpose of soliciting purchases of the Notes from the Company by others
and (ii) agrees that whenever the Company determines to sell Notes
directly to any of the Agents as principal for resale to others, it will enter
into a Terms Agreement (hereafter defined) relating to such sale in
accordance with the provisions of section 2(b) hereof. In soliciting
purchases of the Notes from the Company, each Agent is acting solely as
agent for the Company and not as principal. Each Agent will use its
reasonable best efforts to assist the Company in obtaining performance by
each purchaser whose offer to purchase Notes from the Company has been
solicited by such Agent as agent and accepted by the Company.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3
(No. 333- ) for the registration of the Notes under the Securities Act of
1933 (the "1933 Act") and the offering thereof from time to time in
accordance with Rule 415 of the rules and regulations of the Commission
under the 1933 Act (the "1933 Act Regulations"). Such registration
statement has been declared effective by the Commission and the
Indenture has been qualified under the Trust Indenture Act of 1939 (the
"1939 Act"). Such registration statement (and any further registration
statements which may be filed by the Company for the purpose of regis-
tering additional Notes and in connection with which this Agreement is
included as an exhibit) and the prospectus constituting a part thereof, and
any prospectus supplements (including any pricing supplements) relating
to the Notes, including all documents incorporated therein by reference, as
from time to time amended or supplemented by the filing of documents
pursuant to the Securities Exchange Act of 1934 (the "1934 Act") or the
1933 Act or otherwise, are referred to herein as the "Registration
Statement" and "Prospectus", respectively, except that if any revised
prospectus shall be provided to the Agents by the Company for use in
connection with the offering of the Notes which is not required to be filed
by the Company pursuant to Rule 424(b) of the 1933 Act Regulations, the
term "Prospectus" shall refer to such revised prospectus from and after the
time it is first provided to the Agents for such use.
SECTION 1. Representations and Warranties.
(a) The Company represents and warrants to each of the
Agents as of the date hereof, as of the date of each acceptance by the
Company of an offer for the purchase of Notes (whether through any of
the Agents as agent or by any of the Agents as principal), as of the date of
each delivery of Notes (whether through any of the Agents as agent or to
any of the Agents as principal) (the date of each such delivery to an Agent
as principal being hereafter referred to as a "Settlement Date"), and as of
the times referred to in Section 6(a) hereof (each of the times referenced
above being referred to hereafter as a "Representation Date"), as follows:
(i) Due Incorporation and Qualification. The
Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the
State of Delaware with corporate power and authority to
own, lease and operate its properties and to conduct its
business as described in the Prospectus; and the Company
is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of
business, except where the failure to so qualify would not
have a material adverse effect on the condition, financial or
otherwise, or the earnings, results of operations, assets or
liabilities of the Company and its subsidiaries considered as
one enterprise.
(ii) Subsidiaries. Each subsidiary of the Com-
pany that is a "significant subsidiary" as defined in Rule 405
of Regulation C of the 1933 Act Regulations (each a
"Significant Subsidiary") has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has corporate
power and authority to own, lease and operate its
properties and to conduct its business as described in the
Prospectus and is duly qualified as a foreign corporation to
transact business and is in good standing in each
jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify
would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, results of
operations, assets or liabilities of the Company and its
subsidiaries considered as one enterprise; and all of the
issued and outstanding capital stock of each Significant
Subsidiary has been duly authorized and validly issued, is
fully paid and non-assessable (except to the extent provided
for in Section 180.0622(2)(6) of the Wisconsin Business
Corporation Law, as judicially interpreted) and, except as
set forth in the Notes to Exhibit 21 to the Company's
Annual Report on Form 10-K for the year ended October
31, 1995 ("Exhibit 21"), is owned by the Company, directly
or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance or claim.
(iii) Registration Statement and Prospectus. At
the time the Registration Statement became effective, the
Registration Statement complied, and as of the applicable
Representation Date will comply, in all material respects
with the requirements of the 1933 Act and the 1933 Act
Regulations, and the 1939 Act and the rules and regulations
of the Commission promulgated thereunder. The
Registration Statement, at the time it became effective, did
not, and at each time thereafter at which any amendment to
the Registration Statement becomes effective and any
Annual Report on Form 10-K is filed by the Company with
the Commission and as of the applicable Representation
Date, will not, contain an untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading. The Prospectus, as of the date hereof does not,
and as of the applicable Representation Date will not,
contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the state-
ments therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that
the representations and warranties in this subsection shall
not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance
upon and in conformity with the information furnished to
the Company in writing by the Agents expressly for use in
the Registration Statement or Prospectus or to that part of
the Registration Statement which constitutes the Trustee's
Statement of Eligibility under the 1939 Act (Form T-1).
(iv) Incorporated Documents. The documents
incorporated by reference in the Prospectus, at the time
they were or hereafter are filed with the Commission,
complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations
thereunder (the "1934 Act Regulations"), and, when read
together and with the other information in the Prospectus,
did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were or
are made, not misleading.
(v) Accountants. The accountants who certified
the financial statements included or incorporated by
reference in the Prospectus are independent accountants as
required by the 1933 Act and the 1933 Act Regulations.
(vi) Financial Statements. The financial statements and
summary financial information included or incorporated by
reference in the Registration Statement and the Prospectus present
fairly the consolidated financial position of the Company and its
consolidated subsidiaries as at the dates indicated and the consoli-
dated results of their operations for the periods specified; and
except as stated therein, said financial statements have been
prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout such periods.
(vii) Material Changes or Material Transactions.
Since the respective dates as of which information is given
in the Registration Statement and Prospectus, except as
otherwise stated therein or contemplated thereby, there has
been no material adverse change in the condition, financial
or otherwise, or in the earnings, results of operations,
assets or liabilities of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the
ordinary course of business.
(viii) No Defaults. Neither the Company nor any
of its subsidiaries is in violation of its charter or in default in
the performance or observance of any obligation,
agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease
or other instrument to which it is a party or by which it or
any of them or their properties may be bound, which
violation or default would have a materially adverse effect
on the Company and its subsidiaries considered as one
enterprise; and the execution and delivery of this
Agreement, the Indenture and each applicable Terms
Agreement, if any, and the consummation of the
transactions contemplated herein and therein have been
duly authorized by all necessary corporate action and will
not conflict with or constitute a breach of, or a default
under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the
Company or any of its subsidiaries pursuant to, any
contract, indenture, mortgage, loan agreement, note, lease
or other instrument to which the Company or any such
subsidiary is a party or by which it or any of them may be
bound or to which any of the property or assets of the
Company or any such subsidiary is subject, except for such
of the foregoing which would not have a material adverse
effect on the Company and its subsidiaries considered as
one enterprise, nor will such action result in any violation
of the provisions of the charter or by-laws of the Company
or any law, administrative regulation or administrative or
court order or decree.
(ix) Labor Disputes. Except as may be disclosed
in the Registration Statement, no labor disputes with the
employees of the Company or its subsidiaries exist which
could reasonably be expected to result in any material
adverse change in the condition, financial or otherwise, or
in the earnings, results of operations, assets, or liabilities of
the Company and its subsidiaries considered as one
enterprise.
(x) Legal Proceedings; Contracts. Except as
may be disclosed in the Registration Statement, there is no
action, suit or proceeding before or by 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 any of its subsidiaries,
which is required to be disclosed in the Registration
Statement, or which could reasonably be expected to result
in any material adverse change in the condition, financial or
otherwise, or in the earnings, results of operations, assets
or liabilities of the Company and its subsidiaries considered
as one enterprise, or could reasonably be expected to
materially and adversely affect the properties or assets
thereof or could reasonably be expected to materially and
adversely affect the consummation of this Agreement or
any Terms Agreement; and there are no contracts or
documents of the Company or any of its subsidiaries which
are required to be filed as exhibits to the Registration
Statement by the 1933 Act or by the 1933 Act Regulations
which have not been so filed.
(xi) No Authorization, Approval or Consent
Required. No authorization, approval or consent of any
court or governmental authority or agency is necessary in
connection with the sale of the Notes hereunder, except
such as may be required under the 1933 Act or the 1933
Act Regulations, the 1939 Act or state securities laws.
(xii) Regulatory Certificates, Authorities and
Permits. The Company and its subsidiaries possess such
certificates, authorities or permits issued by the appropriate
state, federal or foreign regulatory agencies or bodies,
necessary to conduct the business now operated by them,
except for such certificates, authorities or permits the
failure to possess which would not have a material adverse
effect on the condition, financial or otherwise, or the
earnings, results of operations, assets or liabilities of the
Company and its subsidiaries considered as one enterprise,
and neither the Company nor any of its subsidiaries has
received any notice of proceedings relating to the
revocation or modification of any such certificate, authority
or permit which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would materially
and adversely affect the condition, financial or otherwise,
or the earnings, results of operations, assets or liabilities of
the Company and its subsidiaries considered as one enter-
prise.
(xiii) Authorization and Validity of the Notes. The
Notes have been duly authorized for issuance and sale
pursuant to this Agreement and, when issued, authenticated
and delivered pursuant to the provisions of this Agreement
and the Indenture against payment of the consideration
therefor specified in the Prospectus or in any Terms
Agreement, the Notes will constitute valid and legally
binding obligations of the Company enforceable in
accordance with their terms, except as enforcement thereof
may be limited by bankruptcy, insolvency, or other laws
relating to or affecting enforcement of creditors' rights or
by general equity principles; the Notes and the Indenture
will be substantially in the form heretofore delivered to the
Agents and conform in all material respects to all
statements relating thereto contained in the Prospectus; and
the Notes will be entitled to the benefits provided by the
Indenture.
(xiv) The Company has complied with all
provisions of Section 1 of Laws of Florida, Chapter 92-198
Securities-Business with Cuba.
(b) Any certificate signed by any officer of the Company and
delivered to any Agent or to counsel for the Agents in connection with an
offering of Notes shall be deemed a representation and warranty by the
Company to such Agent as to the matters covered thereby.
SECTION 2. Solicitations as Agents: Purchases as
Principal.
(a) Solicitations As Agents. On the basis of the
representations and warranties herein contained, but subject to the terms
and conditions herein set forth and to the reservation by the Company of
the right to sell, solicit and accept offers to purchase Notes directly on its
own behalf, each of the Agents agrees, as agent of the Company, to use its
reasonable best efforts to solicit offers to purchase the Notes upon the
terms and conditions set forth in the Prospectus.
The Company reserves the right, in its sole discretion, to suspend
the solicitation of offers to purchase Notes commencing at any time for
any period of time or permanently by any or all of the Agents. Upon
receipt of instructions from the Company, each of the Agents will
forthwith suspend solicitation of offers to purchase Notes from the
Company until such time as the Company has advised the Agents that such
solicitation may be resumed.
The Company agrees to pay each Agent a commission, in the form
of a discount, equal to the applicable percentage of the principal amount of
each Note sold by the Company as a result of a solicitation made by such
Agent as set forth in Exhibit A hereto.
As agent, each Agent is authorized to solicit offers to purchase
Notes only in denominations of $100,000 or any amount in excess thereof
which is an integral multiple of $1,000, at a purchase price equal to 100%
of their principal amount, unless otherwise agreed to by the Company and
the Agent soliciting an offer to purchase such Notes. Each Agent shall
communicate to the Company, orally or in writing, each reasonable offer
to purchase Notes received by such Agent as agent. Each Agent shall
have the right to reject, in whole or in part, any offer to purchase Notes
received by such Agent which it does not deem, in its discretion reasonably
exercised, to be reasonable, and any such rejection shall not be deemed a
breach of such Agent's agreement contained herein. The Company shall
have the sole right to accept offers to purchase Notes and may reject any
such offer in whole or in part. The interest rate, maturity date and other
terms of the Notes shall be agreed upon by the Company and the Agent
soliciting the offer to purchase such Notes and shall be set forth in a
pricing supplement to the Prospectus to be prepared following each
acceptance by the Company of an offer for the purchase of Notes.
The Company will promptly notify each Agent of the principal
amounts of any Notes sold directly by it, and of the settlement dates of
such sales.
Notwithstanding anything to the contrary contained herein, the
Company may authorize any other persons, partnerships or corporations
("Additional Agents") to act as its agent to solicit offers for the purchase
of all or part of the Notes of the Company upon thirty days' prior notice to
such Agents as are at such time parties to this Agreement (subject to the
provisions of Section 10(b) hereof), provided, however, that the
appointment of an Additional Agent shall be on terms no more favorable
to such Additional Agent than the terms of this Agreement, including,
specifically, commissions.
(b) Purchases as Principal. Each sale of Notes to an
Agent as principal shall be made in accordance with the terms of this
Agreement and a separate agreement, which may be an oral agreement,
which will provide for the sale of such Notes to, and the purchase and
reoffering thereof by, such Agent (a "Terms Agreement"). Each Terms
Agreement, if written, shall be substantially in the form of Exhibit B hereto
and may take the form of an exchange of any standard form of written
telecommunication between such Agent and the Company and, if oral,
shall address the items set forth in Exhibit B. The Agent's commitment to
purchase Notes pursuant to any Terms Agreement shall be deemed to have
been made on the basis of the representations and warranties of the
Company herein contained and shall be subject to the terms and conditions
herein set forth.
(c) Administrative Procedures. Administrative pro-
cedures with respect to the sale of Notes shall be as agreed upon from
time to time in writing by the Agents and the Company (the "Procedures").
The Agents and the Company agree to perform the respective duties and
obligations specifically provided to be performed by the Agents and the
Company herein and in the Procedures.
SECTION 3. Covenants of the Company.
The Company covenants with the Agents as follows:
(a) Notice of Certain Events. The Company will notify
the Agents promptly (i) of the effectiveness of any amendment to the
Registration Statement, (ii) of the filing with the Commission of any
supplement to the Prospectus or any document to be filed pursuant to the
1934 Act which will be incorporated by reference in the Prospectus, (iii) of
the receipt of any comments from the Commission with respect to the
Registration Statement or the Prospectus, (iv) of any request by the
Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information
with respect to such amendment or supplement, and (v) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that
purpose. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Notice of Certain Proposed Filings. The Company
will give the Agents notice of its intention to file or prepare any additional
registration statement with respect to the registration of additional Notes,
any amendment to the Registration Statement or any amendment or
supplement to the Prospectus (other than the Company's Quarterly
Reports on Form 10-Q, the Company's Annual Report on Form 10-K or a
pricing supplement to the Prospectus relating solely to the specific interest
rate, maturity dates, redemption provisions and other similar terms of
Notes in respect of which the Company has accepted an offer to
purchase), whether by the filing of documents pursuant to the 1934 Act,
the 1933 Act or otherwise, and will furnish the Agents with copies of any
such amendment or supplement or other documents proposed to be filed
or prepared a reasonable time in advance of such proposed filing or
preparation, as the case may be.
(c) Copies of the Registration Statement and the Pro-
spectus. The Company has delivered or will deliver to the Agents four
signed and as many conformed copies of the Registration Statement (as
originally filed) and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents
incorporated by reference in the Prospectus) as the Agents may reasonably
request. The Company will furnish to the Agents as many copies of the
Prospectus (as amended or supplemented) as the Agents shall reasonably
request so long as the Agents are required to deliver a Prospectus in
connection with the sales or solicitations of offers to purchase the Notes.
(d) Revisions of Prospectus -- Material Changes.
Except as otherwise provided in subsection (j) of this Section 3, if, at any
time when the Prospectus is required to be delivered in connection with
sales of the Notes, any event shall occur or condition exist as a result of
which it is necessary, in the written opinion of counsel for the Agents
delivered to the Company or counsel for the Company, to further amend
or supplement the Prospectus in order that the Prospectus will not include
an untrue statement of a material fact or omit to state any 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 either such counsel, to amend
or supplement the Registration Statement or the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act
Regulations, upon receipt by the Company of any such opinion of counsel
immediate notice shall be given, and confirmed in writing, to the Agents to
cease the solicitation of offers to purchase the Notes in their capacity as
agents and to cease sales of any Notes the Agents may then own as
principals, and the Company will promptly prepare and file with the
Commission such amendment or supplement, whether by filing documents
pursuant to the 1934 Act, the 1933 Act or otherwise, as may be necessary
to correct such untrue statement or omission or to make the Registration
Statement and Prospectus comply with such requirements.
(e) Prospectus Revisions -- Periodic Financial Infor-
mation. Except as otherwise provided in subsection (j) of this Section 3,
on or as soon as practicable after the date on which there shall be released
to the general public interim financial statement information related to the
Company with respect to each of the first three quarters of any fiscal year
or preliminary financial statement information with respect to any fiscal
year, the Company shall furnish such information to the Agents, confirmed
in writing, and (i) if such information reflects a material adverse change in
the financial condition or results of operations of the Company and its
subsidiaries considered as one enterprise in the light of the financial
information with respect to the comparable period of the preceding fiscal
year included or incorporated by reference in the Registration Statement
or the Prospectus or (ii) upon the reasonable request of any Agent, shall
cause the Prospectus to be amended or supplemented to include or
incorporate by reference capsule financial information with respect thereto
and corresponding information for the comparable period of the preceding
fiscal year, as well as such other information and explanations as shall be
necessary for an understanding thereof or as shall be required by the 1933
Act or the 1933 Act Regulations.
(f) Prospectus Revisions -- Audited Financial
Information. Except as otherwise provided in subsection (j) of this
Section 3, on or as soon as practicable after the date on which there shall
be released to the general public financial information included in or
derived from the audited financial statements of the Company for the
preceding fiscal year, the Company (i) if such information reflects a
material adverse change in the financial condition or results of operations
of the Company and its subsidiaries considered as one enterprise in the
light of the financial information with respect to the comparable period of
the preceding fiscal year included or incorporated by reference in the
Registration Statement or the Prospectus or (ii) upon the reasonable
request of any Agent, shall cause the Registration Statement and the
Prospectus to be amended, whether by the filing of documents pursuant to
the 1934 Act, the 1933 Act or otherwise, to include or incorporate by
reference such financial information, as well as such other information and
explanations as shall be necessary for an understanding of such financial
information or as shall be required by the 1933 Act or the 1933 Act
Regulations.
(g) Earnings Statements. The Company will make
generally available to its security holders as soon as practicable, but not
later than 90 days after the close of the period covered thereby, an
earnings statement (in form complying with the provisions of Rule 158
under the 1933 Act) covering each twelve month period beginning, in each
case, not later than the first day of the Company's fiscal quarter next
following the "effective date" (as defined in such Rule 158) of the
Registration Statement with respect to each sale of Notes.
(h) Blue Sky Qualifications. The Company will
endeavor, in cooperation with the Agents, to qualify the Notes for offering
and sale under the applicable securities laws of such states and other
jurisdictions of the United States as the Agents may designate, and will
maintain such qualifications in effect for as long as may be required for the
distribution of the Notes; 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 in any jurisdiction in which it is not so qualified.
The Company will file such statements and reports as may be required by
the laws of each jurisdiction in which the Notes have been qualified as
provided above.
(i) 1934 Act Filings. The Company, during the period
when the Prospectus is required to be delivered under the 1933 Act, will
file promptly all documents required to be filed with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act.
(j) Suspension of Certain Obligations. The Company
shall not be required to comply with the provisions of subsections (d), (e)
or (f) of this Section 3 during any period from the time (i) the Agents shall
have suspended solicitation of purchases of the Notes in their capacity as
agents pursuant to a request from the Company in accordance with
Section 2(a) and (ii) the Agents shall not then hold any Notes as principals
purchased pursuant to a Terms Agreement, to the time the Company shall
determine that solicitation of purchases of the Notes should be resumed or
shall subsequently enter into a new Terms Agreement with the appropriate
Agents.
(k) No Sale of Debt Securities Prior to Settlement
Date. Between the date of any Terms Agreement and the Settlement Date
with respect to such Terms Agreement, the Company will not, without the
prior consent of the respective Agent party to such Terms Agreement,
offer or sell, or enter into any agreement to sell, any debt securities of the
Company (other than the Notes which are to be sold pursuant to such
Terms Agreement and commercial paper in the ordinary course of
business), except as may otherwise be provided in any such Terms
Agreement.
SECTION 4. Payment of Expenses.
The Company will pay all expenses incident to the performance of
its obligations under this Agreement, including:
(i) The preparation and filing of the
Registration Statement and all amendments thereto and the
Prospectus and any amendments or supplements thereto;
(ii) The preparation, filing and, if requested by
the Company, printing of this Agreement;
(iii) The preparation, printing, issuance and
delivery of the Notes;
(iv) The fees and disbursements of the
Company's accountants and counsel and of the Trustee;
(v) The reasonable fees and disbursements of
counsel to the Agents incurred from time to time in
connection with the transactions contemplated hereby;
(vi) The qualification of the Notes under the
securities laws in accordance with the provisions of Section
3(h), including filing fees and the reasonable fees and
disbursements of counsel to the Agents in connection
therewith and in connection with the preparation of any
Blue Sky Survey and any Legal Investment Survey (such
fees of counsel with respect to the first of such Surveys
prepared hereunder not to exceed $10,000);
(vii) The printing and delivery to the Agents in
quantities as hereinabove stated of copies of the
Registration Statement and any amendments thereto, and of
the Prospectus and any amendments or supplements
thereto, and the delivery by the Agents of the Prospectus
and any amendments or supplements thereto in connection
with solicitations or confirmations of sales of the Notes;
(viii) The preparation, printing (if requested by
the Company) and delivery to the Agents of copies of the
Indenture;
(ix) Any fees charged by rating agencies for the
rating of the Notes;
(x) The fees and expenses, if any, incurred with
respect to any filing with the National Association of
Securities Dealers, Inc.; and
(xi) Any reasonable advertising and other out--
of-pocket expenses of the Agents incurred with the
approval of the Company.
SECTION 5. Conditions of Obligations.
The obligation of each of the Agents to solicit offers to
purchase the Notes as agent of the Company and the obligation of any of
the Agents to purchase Notes pursuant to any Terms Agreement will be
subject to the accuracy of the representations and warranties on the part of
the Company herein, to the accuracy of the statements of the Company's
officers made in the most recent certificate furnished to such Agent
pursuant to the provisions of Section 5(b) or Section 6(a) hereof, to the
performance and observance by the Company of all covenants and
agreements herein contained on its part to be performed and observed and
to the following additional conditions precedent:
(a) Legal Opinions. At Closing Time (as defined in
Section 5(d) hereof) and at each Settlement Date with respect to any
applicable Terms Agreement, if called for by such Terms Agreement, the
Agents shall have received the following legal opinions, dated as of the
Closing Time or such Settlement Date, as applicable, and in form and
substance satisfactory to the Agents:
(1) Opinion of General Counsel. The opinion of either
the General Counsel or the Senior Corporate Counsel to the Company, to
the effect that:
(i) The Company has been duly incorporated
and is validly existing as a corporation in good standing
under the laws of the State of Delaware.
(ii) The Company has corporate power and
authority to own, lease and operate its properties and con-
duct its business as described in the Registration Statement.
(iii) To the best of such counsel's knowledge, the
Company is duly qualified as a foreign corporation to
transact business and is in good standing in each
jurisdiction in which the failure to so qualify would have a
material adverse effect on the condition, financial or
otherwise, or the earnings, results of operations, assets or
liabilities of the Company and its subsidiaries considered as
one enterprise.
(iv) Each Significant Subsidiary of the Company
listed in Exhibit 21 has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has corporate
power and authority to own, lease and operate its
properties and conduct its business as described in the
Registration Statement, and, to the best of such counsel's
knowledge, is duly qualified as a foreign corporation to
transact business and is in good standing in each
jurisdiction in which the failure to so qualify would have a
material adverse effect on the condition, financial or
otherwise, or the earnings, results of operations, assets or
liabilities of the Company and its subsidiaries considered as
one enterprise; all of the issued and outstanding capital
stock of each Significant Subsidiary has been duly
authorized and validly issued and is fully paid and non-assessable
(except to the extent provided for in Section
180.0622(2)(6) of the Wisconsin Business Corporation
Law, as judicially interpreted), and all of such capital stock,
except as set forth in the Notes to Exhibit 21, is owned by
the Company, directly or through subsidiaries, free and
clear of any mortgage, pledge, lien, encumbrance or claim.
As used herein, the terms "subsidiaries" and "subsidiary" do
not include any subsidiary that has no material assets or
liabilities.
(v) This Agreement (and, if the opinion is being
given pursuant to Section 6(b) hereof as a result of the
Company having entered into a Terms Agreement, the
applicable Terms Agreement) has been duly authorized,
executed and delivered by the Company.
(vi) The Indenture has been duly and validly
authorized, executed and delivered by the Company and
(assuming the Indenture has been duly authorized, executed
and delivered by the Trustee) constitutes a valid and
binding agreement of the Company, enforceable in
accordance with its terms, except as enforcement thereof
may be limited by bankruptcy, insolvency, or other laws
relating to or affecting enforcement of creditors' rights or
by general equity principles.
(vii) The Notes are in due and proper form, have
been duly and validly authorized by all necessary corporate
action and, when executed and authenticated as specified in
the Indenture and delivered against payment of the
consideration therefor determined in accordance with this
Agreement (and the Terms Agreement, if applicable), will
be valid and binding obligations of the Company,
enforceable in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy,
insolvency, or other laws relating to or affecting
enforcement of creditors' rights or by general equity
principles, and each holder of Notes will be entitled to the
benefits of the Indenture.
(viii) The statements in the Prospectus under the
captions "Description of Securities" and "Description of
Notes" insofar as they purport to summarize certain
provisions of documents specifically referred to therein, are
accurate summaries of such provisions in all material
respects.
(ix) To the best of such counsel's knowledge,
there are no legal or governmental proceedings pending or
threatened which are required to be disclosed in the
Registration Statement, other than those disclosed therein,
and all pending legal or governmental proceedings to which
the Company or any subsidiary is a party or of which any of
their property is the subject which are not described in the
Registration Statement, including ordinary routine litigation
incidental to the business, are, considered in the aggregate,
not material.
(x) To the best of such counsel's knowledge, there
are no contracts, indentures, mortgages, loan agreements,
notes, deeds of trust, leases or other instruments required
to be described or referred to in the Registration Statement
or to be filed as exhibits thereto other than those described
or referred to therein or filed or incorporated by reference
as exhibits thereto, the descriptions thereof or references
thereto are correct in all material respects, and no default
exists in the due performance or observance of any material
obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, loan agreement, note,
deed of trust, lease or other instrument so described,
referred to, filed or incorporated by reference.
(xi) No consent, approval, authorization, order
or decree of any court or governmental authority or agency
is required in connection with the sale of the Notes, except
such as may be required under the 1933 Act, the 1939 Act,
the 1933 Act Regulations or state securities laws; and,
except for such of the following which would not have a
material adverse effect on the Company and its subsidiaries
considered as one enterprise, the execution and delivery of
this Agreement (and, if the opinion is being given pursuant
to Section 6(b) hereof on account of the Company having
entered into a Terms Agreement, the applicable Terms
Agreement) and the Indenture and the consummation of the
transactions contemplated herein and therein will not
conflict with or constitute a breach of, or a default under,
or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company
or any of its subsidiaries pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or other
instrument known to such counsel and to which the
Company or any of its subsidiaries is a party or by which it
or any of them may be bound or to which any of the
property or assets of the Company or any of its subsidiaries
is subject, or any law, administrative regulation or
administrative or court order or decree known to such
counsel to be applicable to the Company of any court or
governmental agency, authority or body or any arbitrator
having jurisdiction over the Company; nor will such action
result in any violation of the provisions of the charter or
by-laws of the Company.
(xii) Each document filed pursuant to the 1934 Act
and incorporated by reference in the Prospectus (other than
the financial statements and the notes thereto and the
supporting schedules and other financial and statistical data
derived therefrom or included or incorporated by reference
therein, as to which no opinion need be given) complied
when filed as to form in all material respects with the 1934
Act and the 1934 Act Regulations thereunder.
(xiii) The information contained under the caption
"Properties" and under the caption "Legal Proceedings" in
the Company's Annual Report on Form 10-K for the year
ended October 31, 1995, to the extent that such disclosed
information constitutes matters of law or legal conclusions,
has been reviewed by such counsel and is correct in all
material respects.
(xix) The Indenture is qualified under the 1939
Act.
(xx) The Registration Statement is effective
under the 1933 Act and, to the best of such counsel's
knowledge, no stop order suspending the effectiveness of
the Registration Statement has been issued under the 1933
Act or proceedings therefor initiated or threatened by the
Commission.
(xxi) At the time the Registration Statement
became effective, the Registration Statement (other than
the financial statements and the notes thereto and the
supporting schedules and other financial and statistical data
derived therefrom and included or incorporated by
reference therein, as to which no opinion need be given)
complied as to form in all material respects with the
requirements of the 1933 Act, the 1939 Act and the
regulations under each of those Acts.
(2) Opinion of Counsel to the Agents. The opinion of
, counsel to the Agents, covering the matters
referred to above in subparagraph (1) under the subheadings (i) and (v) to
(viii), inclusive.
(3) In giving their opinions required by subparagraph
(a)(1) and (a)(2) of this Section, such counsel shall each additionally state
that nothing has come to their attention that would lead them to believe
that the Registration Statement, at the time it became effective, and if an
amendment to the Registration Statement or an Annual Report on Form
10-K has been filed by the Company with the Commission subsequent to
the effectiveness of the Registration Statement (other than the financial
statements and the notes thereto and the supporting schedules and other
financial and statistical data derived therefrom and included or
incorporated by reference therein, as to which no opinion need be
rendered), then at the time such amendment became effective or at the
time of the most recent such filing, and at the date hereof, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus (other than the financial statements
and the notes thereto and the supporting schedules and other financial and
statistical data derived therefrom and included or incorporated by
reference therein, as to which no opinion need be rendered), as amended
or supplemented at the date hereof, or (if such opinion is being delivered in
connection with a Terms Agreement pursuant to Section 6(b) hereof) at
the date of any Terms Agreement and at the Settlement Date with respect
thereto, as the case may be, contains an untrue statement of a material fact
or omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
Each of [Company's Counsel] and [Agents' Counsel] in
rendering their respective opinion, may rely as to matters of fact to the
extent they deem proper and specify in such opinion on certificates of
responsible officers of the Company and its subsidiaries and public offi-
cials.
Each of [Company's Counsel] and [Agents' Counsel] may limit his
or their opinion to matters relating to United States federal law, the law of
the States of New York, Illinois and Wisconsin, and the corporate law of
the State of Delaware. Insofar as the opinion expressed in Section 5(a)(1)
is covered by the laws of the State of New York, [Company's Counsel]
may assume that the laws of such jurisdiction are not materially different
than the laws of the State of Wisconsin and the interpretations thereof.
(b) Officer's Certificate. At Closing Time and at each
Settlement Date with respect to any Terms Agreement, there shall not
have been, since the respective dates as of which information is given in
the Registration Statement and the Prospectus or since the date of such
Terms Agreement, any material adverse change in the condition, financial
or otherwise, of the Company and its subsidiaries considered as one
enterprise, or in the earnings, results of operations, assets or liabilities of
the Company and its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business, except as contemplated or
set forth in the Prospectus; and at Closing Time and, if called for by the
applicable Terms Agreement, at the Settlement Date with respect thereto
the Agents shall have received a certificate of the Chairman of the Board,
the President, the Chief Financial Officer or any Vice President of the
Company, substantially in the form of Appendix I hereto and dated as of
the Closing Time or such Settlement Date, to the effect that, to the best
knowledge of such person, after reasonable investigation, (i) there has
been no such material adverse change, (ii) the other representations and
warranties of the Company contained in Section 1 are true and correct
with the same force and effect as though expressly made at and as of the
date of such certificate, (iii) the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied pursuant to this Agreement or any applicable Terms Agreement at
or prior to the date of such certificate, and (iv) no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been initiated or threatened by the
Commission.
(c) Comfort Letter. At the Closing Time and, if called
for by any Terms Agreement, at each Settlement Date with respect to such
Terms Agreement, the Agents shall have received a letter from Price
Waterhouse LLP, dated as of such date and in form and substance
satisfactory to the Agents, to the effect that:
(i) They are independent accountants with
respect to the Company and its subsidiaries within the
meaning of the 1933 Act and the 1933 Act Regulations.
(ii) In their opinion, the consolidated financial
statements of the Company and its subsidiaries audited by
them and included or incorporated by reference in the
Registration Statement comply as to form in all material
respects with the applicable accounting requirements of the
1933 Act and the 1933 Act Regulations with respect to
registration statements on Form S-3 and the 1934 Act and
the 1934 Act Regulations.
(iii) They have performed specified procedures,
not constituting an audit, including a reading of the latest
available unaudited interim financial data of the Company
and its consolidated subsidiaries, a reading of the minute
books of the Company since the end of the most recent
fiscal year with respect to which an audit report has been
issued, inquiries of and discussions with certain officials of
the Company responsible for financial and accounting
matters with respect to the unaudited consolidated financial
data included in the Registration Statement and Prospectus
and the latest available unaudited interim financial data of
the Company and its subsidiaries, and such other inquiries
and procedures as may be specified in such letter, and on
the basis of such inquiries and procedures nothing came to
their attention that caused them to believe that (A) the
unaudited consolidated financial data included or
incorporated by reference in the Registration Statement and
Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the 1934
Act and the 1934 Act Regulations or, unless otherwise
disclosed, were not stated on a basis substantially
consistent with that of the audited financial statements
included or incorporated by reference therein, or (B) at a
specified date not more than five business days prior to the
date of such letter (or, if no consolidated financial data as
of such date is available, at the most recent date for which
consolidated financial data is available), there was any
change that can be determined in the consolidated capital
stock or any increase in consolidated long-term debt of the
Company and its subsidiaries or any decrease in the
consolidated net assets or shareholders equity of the
Company and its subsidiaries, in each case as compared
with the amounts shown on the most recent consolidated
balance sheet of the Company and its subsidiaries included
or incorporated by reference in the Registration Statement
and Prospectus or, during the period from the date of such
balance sheet to the most recent for which consolidated
financial data is available, there were any decreases, as
compared with the corresponding period in the preceding
year, in consolidated revenues or net income of the
Company and its subsidiaries, except in each such case as
set forth in or contemplated by the Registration Statement
and Prospectus or except for such exceptions enumerated
in such letter as shall have been agreed to by the Agents
and the Company.
(iv) In addition to the audit referred to in their
report included or incorporated by reference in the
Registration Statement and the Prospectus, and the limited
procedures referred to in clause (iii) above, they have
carried out certain other specified procedures, not
constituting an audit, with respect to certain amounts,
percentages and financial information which are included or
incorporated by reference in the Registration Statement and
Prospectus and which are specified by the Agents and
agreed to by the independent accountants which are of a
nature customarily the subject of accountants' comfort
letters, and have found such amounts, percentages and
financial information to be in agreement with the relevant
accounting, financial and other records of the Company and
its subsidiaries identified in such letter.
(d) Other Documents. At Closing Time and on each
Settlement Date with respect to any applicable Terms Agreement, counsel
to the Agents shall have been furnished with such documents and opinions
as such counsel may reasonably require for the purpose of enabling such
counsel to pass upon the issuance and sale of Notes as herein
contemplated and related proceedings, or in order to evidence the
accuracy and completeness of any of the representations and warranties, or
the fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company in connection with the issuance and
sale of Notes as herein contemplated shall be satisfactory in form and
substance to the Agents and to counsel to the Agents.
If any condition specified in this Section 5 shall not have
been fulfilled when and as required to be fulfilled, this Agreement and any
Terms Agreement may be terminated by the Agents by notice to the
Company at any time and any such termination shall be without liability of
any party to any other party, except that the covenant set forth in Section
3(g) hereof, the provisions of Section 4 hereof, the indemnity and
contribution agreements set forth in Sections 7 and 8 hereof, and the
provisions of Sections 9 and 13 hereof shall remain in effect.
The documents required to be delivered by this Section 5
hereof shall be delivered at the office of [Agent's Counsel], on the date
hereof, or at such other time and place as the Agents and the Company
may agree upon in writing (the "Closing Time").
SECTION 6. Subsequent Documentation Requirements of
the Company.
The Company covenants and agrees that:
(a) Subsequent Delivery of Certificates. Each time that
the Registration Statement or the Prospectus shall be amended or
supplemented (other than by an amendment or supplement providing
solely for a change in the interest rates of Notes or similar changes), or
(unless the Agents shall have suspended solicitation of purchases of Notes
in their capacity as agents pursuant to a request from the Company in
accordance with Section 2(a)) there is filed with the Commission any
document incorporated by reference into the Prospectus (other than any
Current Report on Form 8-K relating exclusively to the issuance of debt
securities under the Registration Statement, unless the Agents shall
otherwise specify) or (unless waived by the relevant Agent with respect to
a particular Terms Agreement) the Company sells Notes to an Agent
pursuant to a Terms Agreement, the Company shall furnish or cause to be
furnished to such Agent forthwith a certificate in form satisfactory to such
Agent to the effect that the statements contained in the certificate referred
to in Section 5(b) hereof which were last furnished to the Agents are true
and correct at the time of such amendment, supplement, filing or sale, as
the case may be, as though made at and as of such time (except that such
statements shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such time) or, in lieu of such
certificate, a certificate of the same tenor as the certificate referred to in
said Section 5(b), modified as necessary to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of
delivery of such certificate.
(b) Subsequent Delivery of Legal Opinions. Each time
that the Registration Statement or the Prospectus shall be amended or
supplemented (other than by an amendment or supplement providing
solely for a change in the interest rates of the Notes or similar changes or
solely for the inclusion of additional financial information), or (unless the
Agents shall have suspended solicitation of purchases of Notes in their
capacity as agents pursuant to a request from the Company in accordance
with Section 2(a)) there is filed with the Commission any document
incorporated by reference into the Prospectus, or (unless waived by the
relevant Agent with respect to a particular Terms Agreement) the
Company sells Notes to an Agent pursuant to a Terms Agreement, the
Company shall furnish or cause to be furnished forthwith to the Agents
and to counsel to the Agents an opinion, dated the date of delivery of such
opinion and in form satisfactory to the Agents, of either the General
Counsel or the Senior Corporate Counsel to the Company covering the
matters referred to above in Section 5(a)(1) under the subheadings (i), (v)
(with respect to any applicable Terms Agreement), (ix), (xi) (with respect
to any applicable Terms Agreement) and (xii) and in Section 5(a)(3), but
modified in each case, as necessary, to relate to the Registration Statement
and the Prospectus as amended and supplemented to the time of delivery
of such opinion.
(c) Subsequent Delivery of Comfort Letters. Each
time that the Registration Statement or the Prospectus shall be amended or
supplemented to include additional financial information or (unless the
Agents shall have suspended solicitation of purchases of Notes in their
capacity as agents pursuant to a request from the Company in accordance
with Section 2(a)) there is filed with the Commission any document
incorporated by reference into the Prospectus which contains additional
financial information or (unless waived by the relevant Agent with respect
to a particular Terms Agreement) the Company sells Notes to an Agent
pursuant to a Terms Agreement, the Company shall cause Price
Waterhouse LLP forthwith to furnish the Agents a letter, dated the date of
filing of such amendment, supplement or document with the Commission,
or the date of such sale, as the case may be, in form satisfactory to the
Agents, of the same tenor as the portions of the letter referred to in clauses
(i) and (ii) of Section 5(c) hereof but modified to relate to the Registration
Statement and Prospectus, as amended and supplemented to the date of
such letter, and of the same general tenor as the portions of the letter
referred to in clauses (iii) and (iv) of said Section 5(c) with such changes
as may be necessary to reflect changes in the financial statements and other
information derived from the accounting records of the Company;
provided, however, that if the Registration Statement or the Prospectus is
amended or supplemented solely to include financial information as of and
for a fiscal quarter, Price Waterhouse LLP may limit the scope of such
letter to the unaudited financial data included in such amendment or
supplement unless any other information included therein of an accounting,
financial or statistical nature is of such a nature that, in the reasonable
judgment of the Agents and with the agreement of Price Waterhouse LLP,
such letter should cover such other information.
SECTION 7. Indemnification.
(a) Indemnification of the Agents. The Company
agrees to indemnify and hold harmless the Agents and each person, if any,
who controls the Agents within the meaning of Section 15 of the 1933 Act
as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of
any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or
any amendment thereto), or the omission or alleged
omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged
untrue statement of a material fact contained in the
Prospectus (or any amendment or supplement thereto) or
the omission or alleged omission therefrom of a material
fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made,
not misleading;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent
of the aggregate amount paid in settlement of any litigation,
or investigation or proceeding by any governmental agency
or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission,
if such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever
(including the fees and disbursements of counsel chosen by
the Agents), as incurred, reasonably incurred in
investigating, preparing or defending against any litigation,
or investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission,
to the extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with written information
furnished to the Company by the Agents expressly for use in the
Registration Statement (or any amendment thereto) or the Prospectus (or
any amendment or supplement thereto), or made in reliance upon the
Trustee's Statement of Eligibility under the 1939 Act filed as an exhibit to
the Registration Statement.
(b) Indemnification of Company. The Agents agree,
severally and not jointly, to indemnify and hold harmless the Company,
each of its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the
meaning of Section 15 of the 1933 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in
subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made
in the Registration Statement (or any amendment thereto) or the Prospec-
tus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by the
Agents expressly for use in the Registration Statement (or any amendment
thereto) or the Prospectus (or any amendment or supplement thereto).
(c) General. Each indemnified party shall give prompt
notice to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so
notify an indemnifying party shall not relieve such indemnifying party from
any liability which it may have otherwise than on account of this indemnity
agreement. An indemnifying party may participate at its own expense in
the defense of such action. If it so elects within a reasonable time after
receipt of such notice, an indemnifying party, jointly with any other
indemnifying parties receiving such notice, may assume the defense of such
action with counsel chosen by it and reasonably acceptable to the
indemnified parties to such action, unless such indemnified parties
reasonably object to such assumption on the ground that there may be
legal defenses available to them which are different from or in addition to
those available to such indemnifying party. If an indemnifying party
assumes the defense of such action, the indemnifying parties shall not be
liable for any fees and expenses of counsel for the indemnified parties
incurred thereafter in connection with such action. In no event shall the
indemnifying parties be liable for the fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel
for all indemnified parties in connection with any one action or separate
but similar or related actions in the same jurisdiction arising out of the
same general allegations or circumstances.
SECTION 8. Contribution.
In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 7
is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Company and the
Agents shall contribute to the aggregate losses, liabilities, claims, damages
and expenses of the nature contemplated by said indemnity agreement
incurred by the Company and the Agents, as incurred, in such proportions
that the Agents are responsible for that portion represented by the
percentage that the total commissions and underwriting discounts received
by the Agents to the date of such liability bears to the total sales price
received by the Company from the sale of Notes to the date of such
liability, and the Company is responsible for the balance; provided,
however, that no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section, each person, if any, who controls an Agent
within the meaning of Section 15 of the 1933 Act shall have the same
rights to contribution as such Agent, and each director of the Company,
each officer of the Company who signed the Registration Statement, and
each person, if any, who controls the Company within the meaning of
Section 15 of the 1933 Act shall have the same rights to contribution as
the Company.
SECTION 9. Representations, Warranties and Agreements
to Survive Delivery.
All representations, warranties and agreements contained in
this Agreement or any Terms Agreement, or contained in certificates of
officers of the Company submitted pursuant hereto, shall remain operative
and in full force and effect, regardless of any investigation made by or on
behalf of any of the Agents or any controlling person of any Agent, or by
or on behalf of the Company, and shall survive each delivery of and
payment for any of the Notes.
SECTION 10. Termination.
(a) Termination of this Agreement. This Agreement
may be terminated for any reason, at any time by either the Company or
the Agents upon the giving of 30 days' written notice of such termination
to the other party hereto.
(b) Termination of a Terms Agreement. An Agent
may terminate any Terms Agreement, immediately upon notice to the
Company, at any time prior to the Settlement Date relating thereto (i) if
there has been, since the date of such Terms Agreement or since the
respective dates as of which information is given in the Registration
Statement (as amended and supplemented to the date of the Terms
Agreement), any material adverse change in the condition, financial or
otherwise, or in the earnings, results of operations, assets or liabilities of
the Company and its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business or, (ii) if there shall have
occurred any material adverse change in the financial markets in the United
States or any outbreak or escalation of hostilities or other national or
international calamity or crisis, in all cases the effect of which shall be such
as to make it, in the reasonable judgment of an Agent, impracticable to
market the Notes or enforce contracts for the sale of the Notes, or (iii) if
trading in any securities of the Company shall have been suspended by the
Commission or a national securities exchange, or if trading generally on
either the American Stock Exchange or the New York Stock Exchange
shall have been suspended, or minimum or maximum prices for trading
shall have been fixed, or maximum ranges for prices for securities shall
have been required, by either of said exchanges or by order of the
Commission or any other governmental authority, or if a banking
moratorium shall have been declared by either Federal or New York
authorities, or (iv) if the rating assigned by any nationally recognized
securities rating agency to any senior debt securities of the Company or
any subsidiary thereof as of the date of the applicable Terms Agreement
shall have been lowered since that date or if any such rating agency shall
have publicly announced that it has placed any debt securities of the
Company on what is commonly termed a "watch list" for possible
downgrading, or (v) if there shall have come to an Agent's attention any
facts that would cause an Agent to believe that the Prospectus, at the time
it was required to be delivered to such Agent as principal, contained an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the circum-
stances existing at the time of such delivery, not misleading; provided that
in such case the Company may immediately authorize Additional Agents to
solicit offers for the purchase of Notes in accordance with the provisions
of Section 2(a) hereof notwithstanding the requirement to give the Agents
prior notice of such authorization.
(c) General. In the event of any such termination,
neither party will have any liability to the other party hereto, except that (i)
the Agents shall be entitled to any commissions earned in accordance with
the third paragraph of Section 2(a) hereof, (ii) if at the time of termination
(a) an Agent shall own any Notes purchased pursuant to a Terms
Agreement with the intention of reselling them or (b) an offer to purchase
any of the Notes has been accepted by the Company but the time of
delivery to the purchaser or his agent of the Note or Notes relating thereto
has not occurred, the covenants set forth in Sections 3 and 6 hereof shall
remain in effect until such Notes are so resold or delivered, as the case
may be, and (iii) the covenant set forth in Section 3(g) hereof, the
provisions of Section 4 hereof, the indemnity and contribution agreements
set forth in Sections 7 and 8 hereof, and the provisions of Sections 9 and
13 hereof shall remain in effect.
SECTION 11. Notices.
All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Agents shall be directed to .
Notices to the Company shall be directed to it at Harnischfeger Industries,
Inc., 13400 Bishops Lane, Brookfield, Wisconsin 53005, attention of Executive
Vice President for Finance and Administration.
SECTION 12. Parties.
This Agreement and any Terms Agreement shall inure to
the benefit of and be binding upon the Agents (or in the case of any Terms
Agreement, the Agent which is a party thereto) and the Company and their
respective successors. Nothing expressed or mentioned in this Agreement
or any Terms Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their
respective successors and the controlling persons and officers and
directors referred to in Sections 7 and 8 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any Terms Agreement or any provision
herein or therein contained. This Agreement and any Terms Agreement
and all conditions and provisions hereof and thereof are intended to be for
the sole and exclusive benefit of the parties hereto and thereto and their
respective successors and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Notes shall be deemed
to be a successor by reason merely of such purchase.
SECTION 13. Governing Law.
This Agreement and any Terms Agreement and the rights
and obligations of the parties created hereby and thereby shall be governed
by and construed in accordance with the laws of the State of New York
applicable to agreements made and to be performed in such State.
If the foregoing is in accordance with your understanding
of our agreement, please sign and return to the Company a counterpart
hereof, whereupon this instrument along with all counterparts will become
a binding agreement between the Agents and the Company in accordance
with its terms.
Very truly yours,
HARNISCHFEGER
INDUSTRIES, INC.
By:
----------------------------------
Title:
CONFIRMED AND ACCEPTED, AS OF
THE DATE FIRST ABOVE WRITTEN:
[AGENTS]
BY:
- -----------------------------------------------
Name:
Title:
<PAGE>
APPENDIX I
FORM OF OFFICER'S CERTIFICATE
HARNISCHFEGER INDUSTRIES, INC.
I,
-------------------------------------------, -------------------------
of Harnischfeger Industries, Inc., a Delaware corporation (the "Com-
pany"), pursuant to Section 5(b) of the Distribution Agreement dated
, 199 (the "Distribution Agreement") between the Company and
[Agents], hereby certify that, to the best of my knowledge, after
reasonable investigation:
1. Since , 199 , there has been no
material adverse change in the condition, financial or otherwise, of the
Company and its subsidiaries considered as one enterprise, or in the
earnings, results of operations, assets or liabilities of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, except as contemplated or set forth in the
Prospectus or the Registration Statement (as defined in the Distribution
Agreement);
2. The representations and warranties of the Company
contained in Section 1 of the Distribution Agreement are true and correct
with the same force and effect as though expressly made at and as of the
date hereof;
3. The Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied pursuant to
the Distribution Agreement and the Terms Agreement at or prior to the
date hereof; and
4. No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose
has been initiated or threatened by the Securities and Exchange
Commission.
IN WITNESS WHEREOF, I have hereunto signed my
name and affixed the seal of the Company this , 199
----------------------------------
[Title]
<PAGE>
EXHIBIT A
Maturity Ranges Commission
From 9 months but less than 1 year.... . %
From 1 year but less than 18 months.... .
From 18 months but less than 2 years... .
From 2 years but less than 3 years......... .
From 3 years but less than 4 years......... .
From 4 years but less than 5 years......... .
From 5 years but less than 6 years......... .
From 6 years but less than 7 years......... .
From 7 years but less than 8 years......... .
From 8 years but less than 9 years......... .
From 9 years but less than 10 years........ .
From 10 years but less than 15 years....... .
From 15 years but less than 20 years....... .
From 20 years to 30 years.................. .
<PAGE>
EXHIBIT B
$
---------------------------------------
HARNISCHFEGER INDUSTRIES, INC.
Debt Securities
TERMS AGREEMENT
[DATE]
Harnischfeger Industries, Inc.
13400 Bishops Lane
Brookfield, Wisconsin 53005
Re: Distribution Agreement dated , 199
Ladies and Gentlemen:
Section 1. Agreement to Purchase; Terms of the Notes.
Subject in all respects to the terms and conditions of the Distribution
Agreement (the "Agreement"), dated , 199 among [Agents] and
you (the "Company"), the undersigned (collectively, the "Underwriters")
agree to be bound by and to perform all provisions of this Terms
Agreement and further agree to purchase, severally and not jointly, the
following securities (the "Debentures") of the Company having the
following terms and in the amounts indicated opposite their respective
names under the caption "Underwriting Commitment":
The terms of such securities shall be as follows:
Title: % Debentures due ,
----- -------------- -----
Specified Currency: United States Dollars
Aggregate Principal Amount: $
-----------------
Interest Rate: %
-----
Date of Maturity: , 19
-------------- ---
Interest Payment Dates: and
------------------ ------------------
of each year, commencing on , 199
-------------------------- --
Regular Record Dates: and
-------------------- ------------------
of each year
Redemption Provisions:
Sinking Fund Provisions:
Price to Public: % of the principal amount of the purchased
Debentures, plus accrued interest from , 199 to the date
of delivery
Underwriting Discount: %
----
Settlement Date: , 199
-------------- --
Place for Delivery of Documents, Debentures and Payment
Therefor:
Documents: [Agents' Counsel]
Debentures:
Payment: [Borrower's Bank]
Method of Payment: FED Funds in immediately available
funds
Underwriting Commitment:
Underwriter Amount
$
Total $
Exceptions, if any, to Section 3(k) of the Agreement:
<PAGE>
Section 2. Default by an Underwriter.
(a) If any Underwriter shall default in its obligation to purchase the
Debentures which it has agreed to purchase hereunder, we may in our
discretion arrange for ourselves or another party or other parties to
purchase such Debentures on the terms contained herein. If within
thirty-six hours after such default by any Underwriter we do not arrange for the
purchase of such Debentures, then the Company shall be entitled to a
further period of thirty-six hours within which to procure another party or
other parties reasonably satisfactory to us to purchase such Debentures on
such terms. In the event that, within the respective prescribed period, we
notify the Company that we have so arranged for the purchase of such
Debentures, or the Company notifies us that it has so arranged for the
purchase of such Debentures, we or the Company shall have the right to
postpone the Settlement Date for a period of not more than seven days, in
order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments
to the Registration Statement or the Prospectus which in the mutual
opinion of the Company and the Underwriters may thereby be made
necessary. The term "Underwriter" as used in this Terms Agreement shall
include any person substituted under this provision with like effect as if
such person had originally been a party to this Terms Agreement with
respect to such Debentures.
(b) If, after giving effect to any arrangements for the purchase of
the Debentures of a defaulting Underwriter or Underwriters by us and the
Company as provided in section 2(a) hereof, the aggregate principal
amount of such Debentures which remains unpurchased does not exceed
one-eleventh of the aggregate principal amount of all of the Debentures,
then the Company shall have the right to require each non-defaulting
Underwriter to purchase the principal amount of Debentures which such
Underwriter agreed to purchase hereunder and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of Debentures which such Underwriter agreed to
purchase hereunder) of the Debentures of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of
the Debentures of a defaulting Underwriter or Underwriters by us and the
Company as provided in Section 2(a) hereof, the aggregate principal
amount of Debentures which remains unpurchased exceeds one-eleventh
of the aggregate principal amount of all the Debentures, or if the Company
shall not exercise the right described in Section 2(b) hereof to require
non-defaulting Underwriters to purchase Debentures of a defaulting
Underwriter or Underwriters, then this Terms Agreement shall thereupon
terminate, without liability on the part of any non-defaulting Underwriter
or the Company, except for the indemnity and contribution agreements in
Sections 7 and 8 of the Agreement, and Sections 4, 9 and 13 of the
Agreement, but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
Section 3. Additional Agreements.
(a) All references to Agents and Notes in the Agreement shall refer
to the Underwriters and the Debentures, respectively, hereunder. The
Company understands and agrees that the Underwriters are "agents
purchasing as principals" within the meaning of the Agreement and intend
to sell the Debentures in a public offering as described in the Prospectus
Supplement of the Company dated , 199 . The Company further
understands and agrees that the Underwriters shall have no obligations to
solicit offers to purchase any securities pursuant to Section 2(a) of the
Agreement or otherwise, other than pursuant to this Terms Agreement.
(b) The references to the Company's Annual Report on Form 10-K
for the year ended October 31, 1995 shall be changed to references to the
Company's Annual Report on Form 10-K for the year ended October 31,
199 in Sections 1(a)(ii) and 5(a)(1)(xiii).
(c) At the Settlement Date under the Terms Agreement, and as
additional conditions to the obligations of the Underwriters to take
delivery of and pay for the Debentures, the Underwriters shall receive:
(i) the certificate referred to in Section 5(b) ; and
(ii) the legal opinions called for by Sections 5(a)(1) and (2)
of the Agreement; it being understood that in rendering their
opinion, [Agents' Counsel] may rely on the opinion of
[Company's Counsel] as to matters of Wisconsin law.
(d) The accountants' letter referred to in Section 5(c) of the
Agreement shall be given in the form attached hereto as Schedule I at the
time of execution of this Terms Agreement, and a "bring down" comfort
letter satisfactory to the Underwriters shall be delivered at, and as a
condition to, the closing on the Settlement Date.
(e) The references in the Agreement to "Administrative
Procedures" or "Procedures" shall have no effect on the obligations of the
Underwriters with respect to the offer and sale of the Debentures.
(f) Anything in the Agreement to the contrary notwithstanding, the
provisions of Section 6(a), (b) or (c) of the Agreement shall not apply to
the amending or supplementing of the Registration Statement or
Prospectus by the filing of documents incorporated by reference therein,
but the Company shall not amend or supplement, during the time that the
delivery of a Prospectus is required, the Registration Statement or
Prospectus, by the filing of documents incorporated by reference therein or
otherwise, without the consent of the Underwriters (which shall not be
unreasonably withheld).
(g) Anything in Section 4 of the Agreement to the contrary
notwithstanding, the Underwriters shall pay the fees and expenses of
counsel to the Underwriters.
(h) The parties hereby agree that no indemnifying party (as such
term is used in Section 7 of the Agreement) shall, without the prior written
consent of the indemnified party (as such term is used in Section 7 of the
Agreement), effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought under the Agreement by such
indemnified party unless such settlement includes an unconditional release
of such indemnified party from all liability or claims that are the subject of
such proceeding.
Section 4. Counterparts. This Terms Agreement may be executed in one
or more counterparts, all of which shall be considered one and the same
agreement and each of which shall be deemed an original
[UNDERWRITERS]
BY:
By:
---------------------------------
Name:
Title:
Accepted:
HARNISCHFEGER INDUSTRIES, INC.
By:
-------------------------------------------------
Name:
Title:
Exhibit 4.3
April 4, 1996
Harnischfeger Industries, Inc.
13400 Bishops Lane
Brookfield, WI 53005
Attention: Eric Fonstad
Re: 8.90% Debentures and 8.70% Debentures Issued under an
Indenture (the "Indenture") Dated as of March 1, 1992 from
Harnischfeger Industries, Inc. to Continental Bank, National
Association
Gentlemen:
First Trust of Illinois, National Association hereby acknowledges
that as of December 8, 1995 it succeeded to Bank of America Illinois
(formerly known as Continental Bank, National Association) as trustee
under the Indenture and with respect to the referenced Debentures issued
thereunder.
Sincerely,
/s/ John W. Porter
John W. Porter
Vice President
<PAGE>
Exhibit 5.1
April 4, 1996
Harnischfeger Industries, Inc.
13400 Bishops Lane
Brookfield, Wisconsin 53005
Ladies and Gentlemen:
I am Senior Corporate Counsel for Harnischfeger Industries, Inc.,
a Delaware corporation (the "Company"), and have acted as the
Company's counsel in connection with the proposed registration by the
Company of up to $200 million aggregate principal amount of debt
securities ("Debt Securities"), pursuant to a Registration Statement on
Form S-3 filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the Registration Statement, as the
same may be amended or supplemented, is hereinafter referred to as the
"Registration Statement").
In connection therewith, I have examined and relied upon the
original, or copies certified to my satisfaction, of (i) the Certificate of
Incorporation and By-laws, as amended, of the Company; (ii) minutes and
records of the corporate proceedings of the Company with respect to the
issuance of the Debt Securities; (iii) the Registration Statement and
exhibits thereto; (iv) the form of distribution agreement relating to the
Debt Securities (the "Distribution Agreement") to be entered into between
the Company and one or more agents or underwriters; (v) the indenture
dated as of March 1, 1992, as supplemented by the First Supplemental
Indenture dated as of June 12, 1992, between the Company and First Trust
of Illinois, National Association (successor to Continental Bank, National
Association), as Trustee (the "Trustee"), relating to the Debt Securities
(collectively, the "Indenture"), and (vi) such other documents and
instruments as I have deemed necessary for the expression of the opinions
contained herein.
Based upon the foregoing, I am of opinion that:
When the Registration Statement shall have become effective, the
Board of Directors of the Company, or the officers so authorized by the
Board, has designated the type, terms and amount of Debt Securities to be
issued and take all necessary further action to authorize the issuance and
sale thereof as contemplated by the Registration Statement, and such Debt
Securities have been duly executed on behalf of the Company,
authenticated by the Trustee under the Indenture and issued and paid for in
accordance with the terms of the Distribution Agreement (and any
applicable Terms Agreement), the Debt Securities will constitute valid and
binding obligations of the Company enforceable in accordance with their
terms and will be entitled to the benefits of the Indenture, subject to the
qualification that the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or other
similar laws affecting enforcement of creditors' rights generally, and
enforcement thereof may be limited by general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity
or at law).
Harnischfeger Industries, Inc.
April 4, 1996
Page two
I do not find it necessary for the purposes of this opinion, and
accordingly I do not purport to cover herein, the application of securities
or "Blue Sky" laws of the various states to the sale of the Debt Securities.
I am a member of the bar of the State of Wisconsin and the
opinions expressed herein are limited to the laws of the State of
Wisconsin, the federal laws of the United States and the General
Corporation Law of the State of Delaware.
I hereby consent to the filing of this opinion with the Securities and
Exchange Commission as in exhibit to the Registration Statement and to
the reference to this office under the caption "Legal Matters" in the
Prospectus forming a part of such Registration Statement.
Very truly yours,
Eric B. Fonstad
Senior Corporate Counsel
and Assistant Secretary
Harnischfeger Industries, Inc. Exhibit 12.1
Computation of Ratio of Earnings to Fixed Charges
(In thousands, except for ratios)
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C>
Three Months Ended Year Ended October 31,
1-31/96 1-31/95 1995 1994 1993 1992 1991
--------- --------- ------ ------ ------ ------ ------
Income (loss)
from continuing
operations before
provision
(credit) for
income taxes
and minority
interest $39,941 $5,189 $152,850 $52,796 ($48,746) $112,075 $152,492
Add:
Interest
Expense 15,598 13,158 51,748 54,504 56,169 69,459 69,678
Rental
Expense 2,185 1,735 6,941 6,776 6,674 7,056 6,893
Undistributed
(earnings) loss
of equity
investees 218 (238) 20 738 1,309 3,803 (2,002)
--------- -------- ---------- -------- --------- --------- --------
Earnings
adjusted for
fixed
charges $57,942 $19,844 $211,559 $114,814 $15,406 $192,393 $227,061
======= ======== ======= ====== ====== ====== =======
Fixed Charges
Interest Expense 15,598 13,158 51,748 54,504 56,169 69,459 69,678
Rental Expense 2,185 1,735 6,941 6,776 6,674 7,056 6,893
Preferred Dividend
Requirement - - - - - 17,526 18,160
--------- --------- -------- --------- ------- --------- -------
Total fixed
charges $17,783 $14,893 $58,689 $61,280 $62,843 $94,041 $94,731
====== ====== ====== ====== ====== ====== ======
Ratio of earnings
to fixed
charges (1) 3.26 1.33 3.60 1.87 - (2) 2.05 2.40
====== ====== ====== ====== ====== ====== ======
(1) The ratio of earnings to fixed charges is defined as income from continuing operations
before provision (credit) for income taxes and minority interest plus interest expense
(including amortization of debt issuance expense), the portion of rental expense which represents
interest (deemed to be one-third of rentals ) and dividends received on less-than-fifty-percent-owned
companies, reduced (increased) by equity income (loss) recorded on less-than-fifty-percent-owned
companies, divided by fixed charges. Fixed charges include interest expense (including amortization of
debt issuance expense), the portion of rental expense which represents interest and the preferred dividend requirements, if
applicable.
(2) Earnings did not cover fixed charges by $47,437 in 1993.
</TABLE>
Exhibit 23.1
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 November 28, 1995, which appears in the 1995 Annual Report to
Shareholders of Harnischfeger Industries, Inc. ("Harnischfeger") included
in Harnischfeger's Current Report on Form 8-K dated December 8, 1995,
which is incorporated by reference in Harnischfeger's Annual Report on
Form 10-K for the year ended October 31, 1995. We also consent to the
references to us under the headings "Experts" and "Selected Finanical
Data" in such Prospectus. However, it should be noted that Price
Waterhouse LLP has not prepared or certified such "Selected Financial
Data".
/s/ Price Waterhouse LLP
PRICE WATERHOUSE LLP
Milwaukee, Wisconsin
April 5, 1996
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in the Prospectus constituting part of the
Registration Statement on Form S-3 of our report dated March 25, 1994,
which is included in the Current Report on Form 8-K dated December 8,
1995 and to all references to our Firm included in this Registration
Statement.
/s/Arthur Andersen LLP
Arthur Andersen LLP
Pittsburgh, Pennsylvania,
April 4, 1996
<PAGE>
Exhibit 23.3
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 December 6, 1995, which appears in Harnischfeger Industries, Inc.'s
Current Report on Form 8-K dated December 4, 1995. We also consent
to the reference to us under the heading "Experts" in such Prospectus.
/s/ Price Waterhouse
PRICE WATERHOUSE
Manchester, England
April 5, 1996
EXHIBIT 25.1
===============================================
Securities and Exchange Commission
Washington, D.C. 20549
------------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER
THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility
of a Trustee Pursuant to Section 305(b)(2)
------
FIRST TRUST OF ILLINOIS
NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
36-4046888
(I.R.S. Employer
Identification Number)
400 North Michigan Avenue
Chicago, Illinois 60611
(Address of principal executive offices) (Zip Code)
John W. Porter
400 North Michigan Avenue, Floor 2S
Chicago, Illinois
Telephone (312) 836-6736
(Name, address and telephone number of agent for service)
HARNISCHFEGER INDUSTRIES, INC.
(Exact name of obligor as specified in its charter)
Delaware 39-1566457
(State or other jurisidiction (I.R.S. Employer
of incorporation or organization) Identification Number)
13400 Bishops Lane
Brookfield, Wisconsin 53005
(Address of principal executive (Zip Code)
offices)
Debt Securities
(Title of indenture securities)
========================================================
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
Comptroller of the Currency, Washington, D.C.
(b) Whether it is authorized to exercise corporate
trust powers.
Yes
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe
each such affiliation.
The obligor is not an affiliate of the trustee.
Item 3. Voting Securities of the Trustee.
Furnish the following information as to each class of
voting securities of the trustee:
As of April 3, 1996
Col. A Col. B
Title of Class Amount Outstanding
-------------- ------------------
Not applicable by virtue of response to Item 13.
Item 4. Trusteeships under Other Indentures.
If the trustee is a trustee under another indenture
under which any other securities, or certificates of
interest or participation in any other securities,
of the obligor are outstanding, furnish the following
information:
(a) Title of the securities outstanding under each
such other indenture.
Not applicable by virtue of response to Item
13.
(b) A brief statement of the facts relied upon as
a basis for the claim that no conflicting
interest within the meaning of Section 310(b)(1)
of the Act arises as a result of the trusteeship
under any such other indenture, including a
statement as to how the indenture securities will
rank as compared with the securities issued under
such other indenture.
Not applicable by virtue of response to Item 13.
Item 5. Interlocking Directorates and Similar
Relationships with the Obligor or Underwriters.
If the trustee or any of the directors or executive
officers of the trustee is a director, officer,
partner, employee, appointee, or representative of the
obligor or of ay underwriter for the obligor, identify
each such person having any such connection and state
the nature of each such connection.
Not applicable by virtue of response to Item 13.
Item 6. Voting Securities of the Trustee Owned by the Obligor
or its Officials.
Furnish the following information as to the voting
securities of the trustee owned beneficially by the
obligor and each director, partner and executive officer
of the obligor:
As of April 3, 1996
Col. A Col. B Col. C Col. D
Percentage of
voting securities
represented by
Name of Title of Amount owned amount given
owner class beneficially in Col. C
- -------- -------- ------------ ------------
Not applicable by virtue of response to Item 13.
Item 7. Voting Securities of the Trustee Owned by
Underwriters or their Officials.
Furnish the following information as to the
voting securities of the trustee owned bene-
ficially by each underwriter for the obligor
and each director, partner, and executive
officer of each such underwriter.
As of April 3, 1966
Col. A Col. B Col. C Col. D
Percentage of
voting securities
represented
Name of Title of Amount owned by amount
Owner Class beneficially given in Col. C
- ------- ------- ------------ ---------------
Not applicable by virtue of response to Item 13.
Item 8. Securities of the Obligor Owned or Held by
the Trustee.
Furnish the following information as to securities
of the obligor owned beneficially or held as
collateral security for obligations in default by
the trustee:
As of April 3, 1996
Col. A Col. B Col. C Col. D
Whether the Amount owned
the securi- beneficially or Percent of
ties are held as collat- class repre-
voting or teral security sented by
Title of nonvoting for obligations amount given
of Class securities in default in Col. C
- ------- ----------- --------------- ------------
Not applicable by virtue of response to Item 13.
Item 9. Securities of Underwriters Owned or Held by the
Trustee.
If the trustee owns beneficially or holds as collateral
security for obligations in default any securities of an
underwriter for the obligor, furnish the following infor-
mation as to each class of securities of such underwriter
any of which are so owned or held by the trustee:
As of April 3, 1996
Col. A Col. B Col. C Col. D
Amount Owned
beneficially or
held as collat-
Name of eral security Percent of
Issuer and Amount for obligations class represented
Title of Outstand- in default by by amount given
Class ing Trustee in Col. C
- --------- -------- -------------- -----------------
Not applicable by virtue of response to Item 13.
Item 10. Ownership or Holdings by the Trustee of Voting
Securities of Certain Affiliates or Security
Holders of the Obligor.
If the trustee owns beneficially or holds as collateral
security for obligations in default voting securities
of a person who, to the knowledge of the trustee (1)
owns 10 percent or more of the voting securities of
the obligor or (2) is an affilliate, other than a
subsidiary, of the obligor, furnish the following
information as to the voting securities of such person:
As of April 3, 1996
Col. A Col. B Col. C Col. D
Amount Owned
beneficially or
held as collat- Percent of
Name of eral security for class represented
Issuer and Amount obligations in by amount given
Title of Outstanding default by Trustee in Col. C
- ---------- ----------- ------------------ ------------------
Not applicable by virtue of response to Item 13.
Item 11. Ownership or Holdings by the Trustee of any Securities
of a Person Owning 50 Percent or More of the Voting
Securities of the Obligor.
If the trustee owns beneficially or holds as collateral
security for obligations in default any securities of a
person who, to the knowledge of the trustee, owns 50
percent or more of the voting securities of the obligor,
furish the following information as to each class of
securities of such person any of which are so owned
or held by the trustee:
As of April 3, 1966
Col. A Col. B Col. C Col. D
Amount Owned
beneficially or
held as collat-
Name of eral security Percent of
Issuer and for obligations class represented
Title of Amount in default by by amount given
Class Outstanding Trustee in Col. C
- --------- ----------- --------------- ------------------
Not applicable by virtue of response to Item 13.
Item 12. Indebtedness of the Obligor to the Trustee.
Except as noted in the instructions, if the obligor is
indebted to the trustee, furnish the following information:
Col. A Col. B Col. C
Nature of Amount Date
Indebtedness Outstanding Due
- ------------ ----------- -------
Not applicable by virtue of response to Item 13.
Item 13. Defaults by the Obligor.
(a) State whether there is or has been a default with
respect to the securities under this indenture.
Explain the nature of any such default.
There is not nor has there been a default with respect
to the securities under this indenture.
(b) If the trustee is a trustee under another indenture under
which any other securities, or certificates of interest or
participation in any other securities, of the obligor are
outstanding, or is trustee for more than one outstanding
series of securities under the indenture, state whether there
has been a default under any such indenture or series,
identify the indenture or series affected, and explain the
nature of any such default.
The trustee is not a trustee under any other indenture
under which any other securities or certificates of
interest or participation in any other securities of the
obligor are outstanding. There is not nor has there been
a default with respect to securities issued under this
indenture.
Item 14. Affiliations with the Underwriters.
If any underwriter is an affiliate of the trustee, describe
each such affiliation.
Not applicable by virtue of response to Item 13.
Item 15. Foreign Trustee
Identify the order or rule pursuant to which the foreign
trustee is authorized to act as sole trustee under Inden-
tures qualified or to be qualified under the Act.
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 First Trust
of Illinois, National Association as now in effect,
incorporated herein by reference to Exhibit 1 to T-1;
Registration No. 33-64175.
2. A copy of the certificate of authority of the trustee
to commence business, incorporated herein by reference
to Exhibit 2 to T-1; Registration No. 33-64175.
3. A copy of the certificate of authority of the trustee
to exercise corporate trust powers, incorporated herein
by reference to Exhibit 3 to T-1; Registration No. 33-
64175.
4. A copy of the existing bylaws of First Trust of
Illinois, National Association as now in effect,
incorporated herein by reference to Exhibit 4 to
T-1; Registration No. 33-64175.
5. Not applicable by virtue of response to Item 13.
6. The consent of the trustee required by Section 321
(b) of the Trust Indenture Act of 1939, incorporated
herein by reference to Exhibit 6 to T-1; Registration
No. 33-64175.
7. A copy of the latest report of condition of the
trustee published pursuant to law or the requirement
of its supervising or examining authority, filed herewith.
8. Not applicable.
9. Not applicble.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of
1939, the trustee, First Trust of Illinois, National Association, a
national banking association organized and existing under the laws of
the United States of America, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto
duly authorized, all in the City of Chicago and State of Illinois, as
of the 3rd day of April, 1996.
FIRST TRUST OF ILLINOIS,
NATIONAL ASSOCIATION
By: /s/ John W. Porter
---------------------------------
John W. Porter
Vice President and Secretary
<PAGE>
EXHIBIT 7
(Form T-1)
FIRST TRUST OF ILLINOIS, NATIONAL ASSOCIATION
BALANCE SHEET CERTIFICATION
I, Matthew P. Wagner, Chairman of First Trust of Illinois,
National Association, hereby certify and attest to the accuracy
of the attached balance sheet, and declare that it has been
prepared in conformity with generally accepted accounting
practices, has been examined by me, and to the best of my
knowledge and belief is true and correct.
IN WITNESS WHEREOF, I have executed this certification and
caused the seal of First Trust of Illinois, National Association
to be affixed hereto this 29th day of November, 1995.
/s/ Matthew P. Wagner
------------------------------------
Matthew P. Wagner, Chairman
(Seal)
FIRST TRUST OF ILLINOIS, NATIONAL ASSOCIATION
UNAUDITED BALANCE SHEET/REPORT OF CONDITION
November 28, 1995
ASSETS
Cash and Due from Banks $ 97,000,000
Federal Reserve Bank Stock 3,000,000
Total Assets $100,000,000
LIABILITIES -0-
EQUITY
Common Stock $ 1,000,000
Additional Paid in Capital 99,000,000
Total liabilities
and equity 100,000,000
