<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 17, 1998
REGISTRATION NO. 333-47519
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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OWENS-ILLINOIS, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation or organization)
22-2781933
(I.R.S. Employer Identification Number)
ONE SEAGATE
TOLEDO, OHIO 43666
(419) 247-5000
(Address and telephone number of
Registrant's principal executive offices)
------------------------------
THOMAS L. YOUNG, ESQ.
OWENS-ILLINOIS, INC.
ONE SEAGATE
TOLEDO, OHIO 43666
(419) 247-5000
(Name, address, including ZIP code, and telephone number, including area code,
of agent for service)
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COPIES TO:
TRACY K. EDMONSON
KIM L. WILKINSON
Latham & Watkins
505 Montgomery Street, Suite 1900
San Francisco, California 94111
(415) 328-4600
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this Registration Statement, as
determined by the Registrant.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
------------------------------
PURSUANT TO RULE 429 UNDER THE SECURITIES ACT OF 1933, THE PROSPECTUS
INCLUDED IN THIS REGISTRATION STATEMENT IS A COMBINED PROSPECTUS WHICH RELATES
TO REGISTRATION STATEMENT NO. 333-25175, AS AMENDED, PREVIOUSLY FILED BY
OWENS-ILLINOIS, INC. AND OWENS-ILLINOIS GROUP, INC. ON FORM S-3. THIS
REGISTRATION STATEMENT ALSO CONSTITUTES POST-EFFECTIVE AMENDMENT NO. 1 WITH
RESPECT TO REGISTRATION STATEMENT NO. 333-25175, AS AMENDED, PURSUANT TO WHICH
$1,417,321,150 IN SECURITIES REMAIN TO BE ISSUED.
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<PAGE>
' SUBJECT TO COMPLETION, DATED APRIL 17, 1998
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.
<PAGE>
OWENS-ILLINOIS, INC.
DEBT SECURITIES
PREFERRED STOCK
[LOGO]
COMMON STOCK
---------------------
Owens-Illinois, Inc. (the "Company"), directly or through agents, dealers,
or underwriters designated from time to time, may offer, issue and sell, in one
or more series or issuances, up to $4,000,000,000 in the aggregate of (a)
secured or unsecured debt securities (the "Debt Securities") of the Company, in
one or more series, which may be either senior debt securities (the "Senior Debt
Securities"), senior subordinated debt securities (the "Senior Subordinated Debt
Securities") or subordinated debt securities (the "Subordinated Debt
Securities"), (b) shares of preferred stock of the Company, par value $.01 per
share (the "Preferred Stock"), in one or more series, and (c) shares of common
stock of the Company, par value $.01 per share (the "Common Stock"), or any
combination of the foregoing, either individually or as units consisting of one
or more of the foregoing, each on terms to be determined at the time of sale.
The Debt Securities may be issued as exchangeable and/or convertible Debt
Securities exchangeable for or convertible into shares of Common Stock or
Preferred Stock. The Preferred Stock may also be exchangeable for or convertible
into shares of Common Stock or another series of Preferred Stock. The Debt
Securities, the Preferred Stock and the Common Stock are collectively referred
to herein as the "Securities." The Debt Securities, the Preferred Stock and the
Common Stock may be offered separately or together in one or more separate
classes or series and in amounts, at prices and on terms to be determined at the
time of offering, and to be set forth in one or more supplements to this
Prospectus (each, a "Prospectus Supplement").
Except as described more fully herein or as set forth in the Prospectus
Supplement relating to any offered Debt Securities, the Indenture (as herein
defined) will not provide holders of Debt Securities protection in the event of
a highly-leveraged transaction, reorganization, restructuring, merger or similar
transaction involving the Company which could adversely affect holders of Debt
Securities. See "Description of Debt Securities--Consolidation, Merger and Sale
of Assets."
The Company's Common Stock is traded on The New York Stock Exchange under
the symbol OI. Any Common Stock sold pursuant to a Prospectus Supplement will be
listed on The New York Stock Exchange. On April 16, 1998, the last reported sale
price of the Common Stock on The New York Stock Exchange was $44 7/16 per share.
The Company has not yet determined whether any of the Debt Securities or
Preferred Stock offered hereby will be listed on any exchange or
over-the-counter market. If the Company decides to seek listing of any such
Securities, the Prospectus Supplement relating thereto will disclose such
exchange or market.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY
OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
------------------------
The Securities will be sold directly, through agents, underwriters or
dealers as designated from time to time, or through a combination of such
methods. 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 agents of the Company or
any dealers or underwriters are involved in the sale of the Securities in
respect of which this Prospectus is being delivered, the names of such agents,
dealers or underwriters and any applicable commissions or discounts will be set
forth in or may be calculated from the Prospectus Supplement with respect to
such Securities. See "Plan of Distribution" for possible indemnification
arrangements with agents, dealers and underwriters.
This Prospectus may not be used to consummate sales of Securities unless
accompanied by the applicable Prospectus Supplement.
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THE DATE OF THIS PROSPECTUS IS , 1998.
<PAGE>
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") a Registration Statement on Form S-3 (together with all amendments
and exhibits thereto, the "Registration Statement") under the Securities Act of
1933, as amended (the "Securities Act"), with respect to the Securities offered
hereby. This Prospectus does not contain all of the information set forth in the
Registration Statement, part of which has been omitted in accordance with the
rules and regulations of the Commission. For further information about the
Company and the Securities offered hereby, reference is made to the Registration
Statement, including the exhibits filed as a part thereof and otherwise
incorporated therein. Statements made in this Prospectus as to the contents of
any agreement or other document referred to herein are qualified by reference to
the copy of such agreement or other document filed as an Exhibit to the
Registration Statement or such other document, each such statement being
qualified in its entirety by such reference.
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 periodic reports, proxy statements and other information with
the Commission. The Registration Statement, including the exhibits thereto, as
well as such reports and other information filed by the Company with the
Commission, can be inspected, without charge, and copied at the public reference
facilities maintained by the Commission at 450 Fifth Street, N.W., Room 1024,
Washington D.C., 20549; 7 World Trade Center, New York, New York 10048 and 500
West Madison Street, Suite 1400, Chicago, Illinois 60661. The Commission also
maintains a site on the World Wide Web at http://www.sec.gov, that contains
reports, proxy and other information regarding registrants that file
electronically with the Commission and certain of the Company's filings are
available at such web site. Copies of such materials can be obtained from the
Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549 at prescribed rates. Reports and other information
concerning the Company can also be inspected at the offices of the New York
Stock Exchange, 20 Broad Street, New York, New York 10005.
INFORMATION INCORPORATED BY REFERENCE
The following documents filed with the Commission pursuant to the Exchange
Act are incorporated by reference in this Prospectus:
(1) the Company's Annual Report on Form 10-K for the year ended December
31, 1997;
(2) the Company's Current Report on Form 8-K filed with the Commission
on March 2, 1998, as amended by Form 8-K/A filed with the Commission on
March 4, 1998;
(3) the Company's Current Report on Form 8-K filed with the Commission
on April 16, 1998;
(4) the description of the Common Stock contained in the Company's
Registration Statement on Form 8-A filed on December 3, 1991, as amended;
and
(5) all other documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of
this Prospectus and before the termination of the offering, which shall be
deemed to be a part hereof from the date of filing of such documents.
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Any statement contained in a document incorporated or deemed to be
incorporated by reference herein 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 incorporated or 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.
This Prospectus may not be used to consummate sales of offered securities
unless accompanied by a Prospectus Supplement. The delivery of this Prospectus
together with a Prospectus Supplement relating to particular offered Securities
in any jurisdiction shall not constitute an offer in the jurisdiction of any
other securities covered by this Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered, upon request, a copy of
any documents incorporated into this Prospectus by reference (other than
exhibits incorporated by reference into such document). Requests for documents
should be submitted to the Corporate Secretary, Owens-Illinois, Inc., One
SeaGate, Toledo, Ohio 43666, (telephone (419) 247-5000). The information
relating to the Company contained in this Prospectus does not purport to be
comprehensive and should be read together with the information contained in the
documents incorporated or deemed to be incorporated by reference herein.
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DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
THIS PROSPECTUS, INCLUDING ANY DOCUMENTS THAT ARE INCORPORATED BY REFERENCE
AS SET FORTH IN "INFORMATION INCORPORATED BY REFERENCE," CONTAINS
FORWARD-LOOKING STATEMENTS WITHIN THE MEANING OF SECTION 27A OF THE SECURITIES
ACT AND SECTION 21E OF THE EXCHANGE ACT. SUCH STATEMENTS ARE INDICATED BY WORDS
OR PHRASES SUCH AS "ANTICIPATE," "ESTIMATE," "PROJECTS," "MANAGEMENT BELIEVES,"
"THE COMPANY BELIEVES," "INTENDS," "EXPECTS" AND SIMILAR WORDS OR PHRASES. SUCH
FORWARD-LOOKING STATEMENTS ARE SUBJECT TO CERTAIN RISKS, UNCERTAINTIES OR
ASSUMPTIONS. SHOULD ONE OR MORE OF THESE RISKS OR UNCERTAINTIES MATERIALIZE, OR
SHOULD UNDERLYING ASSUMPTIONS PROVE INCORRECT, ACTUAL RESULTS, PERFORMANCE OR
ACHIEVEMENTS OF THE COMPANY MAY VARY MATERIALLY FROM ANY FUTURE RESULTS,
PERFORMANCE OR ACHIEVEMENTS EXPRESSED OR IMPLIED BY SUCH FORWARD-LOOKING
STATEMENTS. ALL SUBSEQUENT WRITTEN AND ORAL FORWARD-LOOKING STATEMENTS
ATTRIBUTABLE TO THE COMPANY OR PERSONS ACTING ON ITS BEHALF ARE EXPRESSLY
QUALIFIED IN THEIR ENTIRETY BY THE CAUTIONARY STATEMENTS IN THIS PARAGRAPH. THE
COMPANY DISCLAIMS ANY OBLIGATION TO PUBLICLY ANNOUNCE THE RESULTS OF ANY
REVISIONS TO ANY OF THE FORWARD-LOOKING STATEMENTS CONTAINED HEREIN TO REFLECT
FUTURE EVENTS OR DEVELOPMENTS.
THE COMPANY
The Company, through its subsidiaries, is the successor to a business
established in 1903. The Company is one of the world's leading manufacturers of
packaging products. Approximately one of every two glass containers made
worldwide is made by the Company, its affiliates or licensees. In addition to
being the largest manufacturer of glass containers in the United States, North
America, South America and India, and the second largest in Europe, the Company
is a leading manufacturer in the United States of plastic containers, plastic
closures, plastic prescription containers, labels, and multipack plastic
carriers for beverage containers. Since 1992, through acquisitions and
investments strategic to its core businesses, the Company has furthered its
market leadership position in the geographic areas in which it competes. During
the years 1993 through 1997, the Company has invested more than $1.5 billion in
capital expenditures alone (excluding acquisition expenditures) to improve
productivity and increase capacity in key locations.
RECENT DEVELOPMENTS
ACQUISITION. On March 1, 1998, the Company signed a definitive agreement to
acquire the worldwide glass and plastics packaging businesses of BTR plc ("BTR")
in an all cash transaction valued at approximately $3.6 billion (the
"Acquisition"). In connection with obtaining regulatory approvals for the
Acquisition, the Company believes it will be required to divest certain portions
of the acquired businesses. The Company believes, however, that any divestitures
which may be required in connection with the Acquisition will not have a
material adverse effect on the Company or its ability to integrate the acquired
businesses.
BTR's glass packaging unit is the leading glass container manufacturer in
Australia and New Zealand, a leading supplier in the United Kingdom and
participates in joint ventures in China and Indonesia. The Company has provided
technology and equipment to BTR's glass packaging unit since 1967 and to certain
BTR plastics businesses under a series of technical assistance agreements.
BTR's plastic packaging unit is a leading supplier of polyethylene
terephthalate (PET) hot fill food and drink containers, with operations in the
United States, Australia, New Zealand, the United Kingdom, the Netherlands, and
in emerging markets in such areas as Brazil, China, Hungary, Mexico and Saudi
Arabia. In addition, BTR's operations in Australia and New Zealand produce a
variety of plastic bottles and closures of high density polyethylene and
polypropylene.
The Company intends to finance the Acquisition initially with bank
borrowings. Following the closing, the Company plans to refinance a portion of
the bank borrowings with public offerings of debt and equity securities. The
Acquisition is subject to certain regulatory approvals. Although there can be no
assurance
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of these approvals, the Company believes that the approvals will be obtained and
that the Acquisition will close in the second quarter of 1998.
Since 1991, excluding the Acquisition, the Company has acquired 10 glass
container companies serving emerging markets and eight plastic packaging
operations. BTR's worldwide glass and packaging businesses had 1997 sales of
approximately $1.5 billion.
The principal offices of the Company are located at One SeaGate, Toledo,
Ohio 43666, and the telephone number is (419) 247-5000.
USE OF PROCEEDS
Unless otherwise indicated in the applicable Prospectus Supplement, the
Company anticipates that any net proceeds would be used for general corporate
purposes, which may include but are not limited to working capital, capital
expenditures and acquisitions or the repayment or refinancing of the Company's
indebtedness, including bank borrowings expected to be approximately $3.6
billion in connection with the Acquisition. The factors which the Company will
consider in any refinancing will include the number of shares of Common Stock,
Preferred Stock and/or the amount and characteristics of any Debt Securities
issued and may include, among others, the impact of such refinancing on the
Company's liquidity, debt-to-capital ratio and earnings per share. When a
particular series of Securities is offered, the Prospectus Supplement relating
thereto will set forth the Company's intended use for the net proceeds received
from the sale of such Securities. Pending the application of the net proceeds,
the Company expects to invest such proceeds in short-term, interest-bearing
instruments or other investment-grade securities or to reduce indebtedness under
its bank credit agreement.
5
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RATIOS OF EARNINGS TO FIXED CHARGES
AND EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following table sets forth the ratios of earnings to fixed charges and
earnings to combined fixed charges and preferred stock dividends of the Company
for the periods indicated.
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
------------------------------------------
<S> <C> <C> <C> <C>
1997 1996 1995 1994
--------- --------- --------- ---------
Ratio of earnings to fixed charges (a)......................................... 2.4x 2.0x 1.9x 1.5x
Ratio of earnings to combined fixed charges and preferred stock dividends (a)
(b).......................................................................... 2.3x 1.9x 1.9x 1.5x
<CAPTION>
<S> <C>
1993
-----
Ratio of earnings to fixed charges (a)......................................... (c)
Ratio of earnings to combined fixed charges and preferred stock dividends (a)
(b).......................................................................... (c)
</TABLE>
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(a) For the purpose of calculating the ratio of earnings to fixed charges and
the ratio of earnings to fixed charges and preferred stock dividends,
earnings consist of income before income taxes and fixed charges. Fixed
charges include interest expense, capitalized interest and that portion of
rentals representative of an interest factor.
(b) At December 31, 1997, the Company had (i) 65,625 shares issued and 17,099
shares outstanding of Series A Exchangeable Preferred Stock ("Series A"),
(ii) 65,625 shares issued and 55,665 shares outstanding of Series B
Exchangeable Preferred Stock ("Series B") and (iii) 131,250 shares issued
and outstanding of Series C Exchangeable Preferred Stock ("Series C" and,
together with the Series A and the Series B, the "Exchangeable Preferred
Stock"). The holders of Exchangeable Preferred Stock are entitled to receive
cumulative dividends at the rate of $7.00 per year on each share of
Exchangeable Preferred Stock. At December 31, 1997, dividends accumulated
and unpaid were approximately $7.4 million. Shares of Exchangeable Preferred
Stock are exchangeable for a number of shares of Common Stock of the Company
determined by multiplying the total number of exchangeable shares being
exchanged by the sum of $100 plus all dividends accumulated and unpaid on
each share being exchanged and dividing such amount by the last reported
sales price of the Company's Common Stock on the New York Stock Exchange at
the close of business on the business day next preceding the day of
exchange. Holders of the Exchangeable Preferred Stock have no voting rights,
except on actions which would affect their exchange rights or on actions to
increase the authorized number of exchangeable shares.
(c) Earnings of the Company were insufficient to cover fixed charges and
combined fixed charges and preferred stock dividends for the year ended
December 31, 1993 in the amount of $292.0 million and $295.0 million,
respectively, due to a $250.0 million charge in the fourth quarter of 1993
principally related to the Company's restructuring program and a $325.0
million charge in the fourth quarter of 1993 for estimated uninsured future
asbestos-related costs.
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DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general terms and provisions of
the Debt Securities to which any Prospectus Supplement may relate. The
particular terms of the Debt Securities offered by any Prospectus Supplement,
and the extent, if any, to which such general provisions do not apply to the
Debt Securities so offered, will be described in the Prospectus Supplement
relating to such Debt Securities.
Debt Securities may be issued from time to time in series under an
indenture, and one or more indentures supplemental thereto (collectively, the
"Indenture"), between the Company and a trustee to be identified in the
applicable Prospectus Supplement (the "Trustee"). The terms of the Debt
Securities will include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (the "TIA") as in
effect on the date of the Indenture. The Debt Securities will be subject to all
such terms, and potential purchasers of the Debt Securities are referred to the
Indenture and the TIA for a statement thereof. The following summary of certain
provisions of the Indenture does not purport to be complete and is qualified in
its entirety by reference to the Indenture, including the definitions therein of
certain terms used below. A copy of the proposed form of Indenture has been
filed as an exhibit to the Registration Statement of which this Prospectus is a
part. As used under this caption, unless the context otherwise requires,
"Offered Debt Securities" shall mean the Debt Securities offered by this
Prospectus and an accompanying Prospectus Supplement.
GENERAL
The Indenture will provide for the issuance of Debt Securities in series and
will not limit the principal amount of Debt Securities which may be issued
thereunder. In addition, except as may be provided in the Prospectus Supplement
relating to such Debt Securities, the Indenture will not limit the amount of
additional indebtedness the Company may incur.
The applicable Prospectus Supplement or Prospectus Supplements will describe
the following terms of the series of Offered Debt Securities in respect of which
this Prospectus is being delivered: (1) the title of the Offered Debt
Securities; (2) whether the Offered Debt Securities are Senior Debt Securities,
Senior Subordinated Debt Securities or Subordinated Debt Securities or any
combination thereof; (3) the price or prices (expressed as a percentage of the
aggregate principal amount thereof) at which the Offered Debt Securities will be
issued; (4) any limit upon the aggregate principal amount of the Offered Debt
Securities; (5) the date or dates on which the principal of the Offered Debt
Securities is payable; (6) the rate or rates (which may be fixed or variable) at
which the Offered Debt Securities will bear interest, if any, or the manner in
which such rate or rates are determined; (7) the date or dates from which any
such interest will accrue, the interest payment dates on which any such interest
on the Offered Debt Securities will be payable and the record dates for the
determination of holders to whom such interest is payable; (8) the place or
places where the principal of and any interest on the Offered Debt Securities
will be payable; (9) the obligation of the Company, if any, to redeem,
repurchase or repay the Offered Debt Securities in whole or in part pursuant to
any sinking fund or analogous provisions or at the option of the holders and the
price or prices at which and the period or periods within which and the terms
and conditions upon which the Offered Debt Securities shall be redeemed,
repurchased or repaid pursuant to such obligation; (10) the denominations in
which any Offered Debt Securities will be issuable, if other than denominations
of U.S. $1,000 and any integral multiple thereof; (11) if other than the
principal amount thereof, the portion of the principal amount of the Offered
Debt Securities of the series which will be payable upon declaration of the
acceleration of the maturity thereof; (12) any addition to or change in the
covenants which apply to the Offered Debt Securities; (13) any Events of Default
with respect to the Offered Debt Securities, if not otherwise set forth under
"Events of Default;" (14) whether the Offered Debt Securities will be issued in
whole or in part in global form, the terms and conditions, if any, upon which
such global Offered Debt Securities may be exchanged in whole or in part for
other individual securities, and the depositary for the Offered Debt Securities;
(15) the terms and conditions, if any, upon which the Offered Debt Securities
shall be exchanged for or converted into Common Stock or Preferred Stock; (16)
the
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nature and terms of the security for any secured Offered Debt Securities; and
(17) any other terms of the Offered Debt Securities which terms shall not be
inconsistent with the provisions of the Indenture.
Debt Securities may be issued at a discount from their principal amount
("Original Issue Discount Securities"). Federal income tax considerations and
other special considerations applicable to any such Original Issue Discount
Securities will be described in the applicable Prospectus Supplement.
Debt Securities may be issued in bearer form, with or without coupons.
Federal income tax considerations and other special considerations applicable to
bearer securities will be described in the applicable Prospectus Supplement.
STATUS OF DEBT SECURITIES
The Senior Debt Securities will rank PARI PASSU with all other unsecured and
unsubordinated indebtedness of the Company.
The obligations of the Company pursuant to Senior Subordinated Debt
Securities will be subordinate in right of payment, to the extent and in the
manner set forth in the Indenture, to all Senior Indebtedness of the Company.
With respect to any series of Senior Subordinated Debt Securities, "Senior
Indebtedness" of the Company will be defined to mean the principal of, and
premium, if any, and any interest (including interest accruing subsequent to the
commencement of any proceeding for the bankruptcy or reorganization of the
Company under any applicable bankruptcy, insolvency or similar law now or
hereafter in effect) and all other monetary obligations of every kind or nature
due on or in connection with (a) all indebtedness of the Company whether
heretofore or hereafter incurred (i) for borrowed money or (ii) in connection
with the acquisition by the Company or a subsidiary of the Company of assets
other than in the ordinary course of business, for the payment of which the
Company is liable directly or indirectly by guarantee, letter of credit,
obligation to purchase or acquire or otherwise, or the payment of which is
secured by a lien, charge or encumbrance on assets acquired by the Company, (b)
amendments, modifications, renewals, extensions and deferrals of any such
indebtedness, and (c) any indebtedness issued in exchange for any such
indebtedness (clauses (a) through (c) hereof being collectively referred to
herein as "Debt"); provided, however, that the following will not constitute
Senior Indebtedness with respect to Senior Subordinated Debt Securities: (1) any
Debt as to which, in the instrument evidencing such Debt or pursuant to which
such Debt was issued, it is expressly provided that such Debt is subordinate in
right of payment to all Debt of the Company not expressly subordinated to such
Debt; (2) any Debt which by its terms refers explicitly to the Senior
Subordinated Debt Securities and states that such Debt shall not be senior in
right of payment; and (3) any Debt of the Company in respect of the Senior
Subordinated Debt Securities or any Subordinated Debt Securities.
The obligations of the Company pursuant to Subordinated Debt Securities will
be subordinate in right of payment to all Senior Indebtedness of the Company and
to any Senior Subordinated Debt Securities; provided, however, that the
following will not constitute Senior Indebtedness with respect to Subordinated
Debt Securities: (1) any Debt as to which, in the instrument evidencing such
Debt or pursuant to which such Debt was issued, it is expressly provided that
such Debt is subordinate in right of payment to all Debt of the Company not
expressly subordinated to such Debt; and (2) any Debt of the Company in respect
of Subordinated Debt Securities and any Debt which by its terms refers
explicitly to the Subordinated Debt Securities and states that such Debt shall
not be senior in right of payment.
No payment pursuant to the Senior Subordinated Debt Securities or the
Subordinated Debt Securities, as the case may be, may be made unless all amounts
of principal, premium, if any, and interest then due on all applicable Senior
Indebtedness of the Company shall have been paid in full or if there shall have
occurred and be continuing beyond any applicable grace period a default in any
payment with respect to any such Senior Indebtedness, or if there shall have
occurred any event of default with respect to any such Senior Indebtedness
permitting the holders thereof to accelerate the maturity thereof, or if any
judicial proceeding shall be pending with respect to any such default. However,
the Company may make payments
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pursuant to the Senior Subordinated Debt Securities or the Subordinated Debt
Securities, as the case may be, if a default in payment or an event of default
with respect to the Senior Indebtedness permitting the holder thereof to
accelerate the maturity thereof has occurred and is continuing and judicial
proceedings with respect thereto have not been commenced within a certain number
of days of such default in payment or event of default. Upon any distribution of
the assets of the Company upon dissolution, winding-up, liquidation or
reorganization, the holders of Senior Indebtedness of the Company will be
entitled to receive payment in full of principal, premium, if any, and interest
(including interest accruing subsequent to the commencement of any proceeding
for the bankruptcy or reorganization of the Company under any applicable
bankruptcy, insolvency or similar law now or hereafter in effect) before any
payment is made on the Senior Subordinated Debt Securities or Subordinated Debt
Securities, as applicable. By reason of such subordination, in the event of
insolvency of the Company, holders of Senior Indebtedness of the Company may
receive more, ratably, and holders of the Senior Subordinated Debt Securities or
Subordinated Debt Securities, as applicable, having a claim pursuant to the
Senior Subordinated Debt Securities or Subordinated Debt Securities, as
applicable, may receive less, ratably, than the other creditors of the Company.
Such subordination will not prevent the occurrence of any event of default (an
"Event of Default") in respect of the Senior Subordinated Debt Securities or the
Subordinated Debt Securities.
If the Company offers Debt Securities, the applicable Prospectus Supplement
will set forth the aggregate amount of outstanding indebtedness, if any, as of
the most recent practicable date that by the terms of such Debt Securities would
be senior to such Debt Securities. The applicable Prospectus Supplement will
also set forth any limitation on the issuance by the Company of any additional
senior indebtedness.
CONVERSION RIGHTS
The terms, if any, on which Debt Securities of a series may be exchanged for
or converted into shares of Common Stock or Preferred Stock will be set forth in
the Prospectus Supplement relating thereto.
EXCHANGE, REGISTRATION, TRANSFER AND PAYMENT
Unless otherwise specified in the applicable Prospectus Supplement, payment
of principal, premium, if any, and any interest on the Debt Securities will be
payable, and the exchange of and the transfer of Debt Securities will be
registerable, at the office of the Trustee or at any other office or agency
maintained by the Company for such purpose subject to the limitations of the
Indenture. Unless otherwise indicated in the applicable Prospectus Supplement,
the Debt Securities will be issued in denominations of U.S. $1,000 or integral
multiples thereof. No service charge will be made for any registration of
transfer or exchange of the Debt Securities, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge imposed in
connection therewith.
GLOBAL DEBT SECURITIES
The Debt Securities of a series may be issued in the form of one or more
Global Securities (the "Global Securities") that will be deposited with a
Depositary or its nominee identified in the applicable Prospectus Supplement. In
such a case, one or more Global Securities will be issued in a denomination or
aggregate denominations equal to the portion of the aggregate principal amount
of outstanding Debt Securities of the series to be represented by such Global
Security or Securities. Each Global Security will be deposited with such
Depositary or nominee or a custodian therefor and will bear a legend regarding
the restrictions on exchanges and registration of transfer thereof referred to
below and any such other matters as may be provided for pursuant to the
applicable Indenture.
Notwithstanding any provision of the Indenture or any Debt Security
described herein, no Global Security may be transferred to, or registered or
exchanged for Debt Securities registered in the name of, any person or entity
other than the Depositary for such Global Security or any nominee of such
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Depositary, and no such transfer may be registered, unless (i) the Depositary
has notified the Company that it is unwilling or unable to continue as
Depositary for such Global Security or has ceased to be qualified to act as such
as required by the applicable Indenture, (ii) the Company executes and delivers
to the Trustee an order that such Global Security shall be so transferable,
registerable and exchangeable, and such transfers shall be registerable, or
(iii) there shall exist such circumstances, if any, as may be described in the
applicable Prospectus Supplement. All Debt Securities issued in exchange for a
Global Security or any portion thereof will be registered in such names as the
Depositary may direct.
The specific terms of the depositary arrangement with respect to any portion
of a series of Debt Securities to be represented by a Global Security will be
described in the applicable Prospectus Supplement. The Company expects that the
following provisions will apply to depositary arrangements.
Unless otherwise specified in the applicable Prospectus Supplement, Debt
Securities which are to be represented by a Global Security to be deposited with
or on behalf of a Depositary will be represented by a Global Security registered
in the name of such Depositary or its nominee. Upon the issuance of such Global
Security, and the deposit of such Global Security with or on behalf of the
Depositary for such Global Security, the Depositary will credit, on its
book-entry registration and transfer system, the respective principal amounts of
the Debt Securities represented by such Global Security to the accounts of
institutions that have accounts with such Depositary or its nominee
("participants"). The accounts to be credited will be designated by the
underwriters or agents of such Debt Securities or by the Company, if such Debt
Securities are offered and sold directly by the Company. Ownership of beneficial
interests in such Global Security will be limited to participants or persons
that may hold interests through participants. Ownership of beneficial interests
by participants in such Global Security will be shown on, and the transfer of
that ownership interest will be effected only through, records maintained by the
Depositary or its nominee for such Global Security. Ownership of beneficial
interests in such Global Security by persons that hold through participants will
be shown on, and the transfer of that ownership interest within such participant
will be effected only through, records maintained by such participant. The laws
of some jurisdictions require that certain purchasers of securities take
physical delivery of such securities in certificate form. The foregoing
limitations and such laws may impair the ability to transfer beneficial
interests in such Global Securities.
So long as the Depositary for a Global Security, or its nominee, is the
registered owner of such Global Security, such Depositary or such nominee, as
the case may be, will be considered the sole owner or holder of the Debt
Securities represented by such Global Security for all purposes under the
Indenture. Unless otherwise specified in the applicable Prospectus Supplement,
owners of beneficial interests in such Global Security will not be entitled to
have Debt Securities of the series represented by such Global Security
registered in their names, will not receive or be entitled to receive physical
delivery of Debt Securities of such series in certified form and will not be
considered the holders thereof for any purposes under the Indenture.
Accordingly, each person owning a beneficial interest in such Global Security
must rely on the procedures of the Depositary and, if such person is not a
participant, on the procedures of the participant through which such person owns
its interest, to exercise any rights of a holder under the Indenture. If the
Company requests any action of holders or if an owner of a beneficial interest
in such Global Security desires to give any notice or take any action a holder
is entitled to give or take under the Indenture, the Depositary will authorize
the participants to give such notice or take such action, and participants would
authorize beneficial owners owning through such participants to give such notice
or take such action or would otherwise act upon the instructions of beneficial
owners owning through them.
Notwithstanding any other provisions to the contrary in the Indenture, the
rights of the beneficial owners of the Debt Securities to receive payment of the
principal and premium, if any, of and interest on such Debt Securities, on or
after the respective due dates expressed in such Debt Securities, or to
institute suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of the
beneficial owners.
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Principal of and any interest on a Global Security will be payable in the
manner described in the applicable Prospectus Supplement.
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Indenture will provide that the Company may not consolidate with or
merge with or into, or sell, assign, transfer, lease, convey or otherwise
dispose of all or substantially all of its property or assets to any person in
one or more related transactions unless (a) the Company is the surviving
corporation or the person formed by or surviving any such consolidation or
merger (if other than the Company) or to which such sale, assignment, transfer,
lease, conveyance or other disposition shall have been made is a corporation
organized and existing under the laws of the United States, any state thereof or
the District of Columbia; (b) the person formed by or surviving any such
consolidation or merger (if other than the Company) or the person to which such
sale, assignment, transfer, lease, conveyance or other disposition shall have
been made assumes all the obligations of the Company under the Debt Securities
and the Indenture; and (c) immediately prior to and after giving effect to the
transaction, no Default (as defined in the Indenture) or Event of Default shall
have occurred and be continuing. Notwithstanding the foregoing, any subsidiary
of the Company may consolidate with, merge into or transfer all or part of its
properties and assets to the Company.
CERTAIN OTHER COVENANTS
Unless otherwise indicated in this Prospectus or a Prospectus Supplement,
the Debt Securities will not have the benefit of any covenants that limit or
restrict the Company's business or operations, the pledging of the Company's
assets or the incurrence of indebtedness by the Company.
With respect to any series of Senior Subordinated Debt Securities, the
Company will agree not to issue Debt which is, expressly by its terms,
subordinated in right of payment to any other Debt of the Company and which is
not expressly made PARI PASSU with, or subordinate and junior in right of
payment to, the Senior Subordinated Debt Securities.
The applicable Prospectus Supplement will describe any material covenants in
respect of a series of Debt Securities. Other than the covenants of the Company
included in the Indenture as described above or as described in the applicable
Prospectus Supplement, there are no covenants or other provisions in the
Indenture providing for a put or increased interest or otherwise that would
afford holders of Debt Securities additional protection in the event of a
recapitalization transaction, a change of control of the Company or a highly
leveraged transaction.
EVENTS OF DEFAULT
Unless otherwise specified in the applicable Prospectus Supplement, the
following will constitute Events of Default under the Indenture with respect to
Debt Securities of any series: (a) failure to pay principal of any Debt Security
of that series when due and payable at maturity, upon redemption or otherwise;
(b) failure to pay any interest on any Debt Security of that series when due,
and the Default continues for 30 days; (c) the Company fails to comply with any
of its other agreements in the Debt Securities of that series or in the
Indenture with respect to that series and the Default continues for the period
and after the notice provided therein (and described below); and (d) certain
events of bankruptcy, insolvency or reorganization. A Default under clause (c)
above is not an Event of Default with respect to a particular series of Debt
Securities until the Trustee or the holders of at least 50% in principal amount
of the then outstanding Debt Securities of that series notify the Company of the
Default and the Company does not cure the Default within 30 days after receipt
of the notice. The notice must specify the Default, demand that it be remedied
and state that the notice is a "Notice of Default."
If an Event of Default with respect to outstanding Debt Securities of any
series (other than an Event or Default relating to certain events of bankruptcy,
insolvency or reorganization) shall occur and be
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continuing, either the Trustee or the holders of at least 50% in principal
amount of the outstanding Debt Securities of that series by notice, as provided
in the Indenture, may declare the unpaid principal amount (or, if the Debt
Securities of that series are Original Issue Discount Securities, such lesser
amount as may be specified in the terms of that series) of, and any accrued and
unpaid interest on, all Debt Securities of that series to be due and payable
immediately. However, at any time after a declaration of acceleration with
respect to Debt Securities of any series has been made, but before a judgment or
decree based on such acceleration has been obtained, the holders of a majority
in principal amount of the outstanding Debt Securities of that series may, under
certain circumstances, rescind and annul such acceleration. For information as
to waiver of defaults, see "Modification and Waiver" below.
The Indenture will provide that, subject to the duty of the Trustee during
an Event of Default to act with the required standard of care, the Trustee will
be under no obligation to exercise any of its rights or powers under the
Indenture at the request or direction of any of the holders, unless such holders
shall have offered to the Trustee reasonable security or indemnity. Subject to
certain provisions, including those requiring security or indemnification of the
Trustee, the holders of a majority in principal amount of the outstanding Debt
Securities of any series will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the Debt
Securities of that series.
The Company will be required to furnish to the Trustee under the Indenture
annually a statement as to the performance by the Company of its obligations
under that Indenture and as to any default in such performance.
MODIFICATION AND WAIVER
Subject to certain exceptions, the Company and the Trustee may amend the
Indenture or the Debt Securities with the written consent of the holders of a
majority in principal amount of the then outstanding Debt Securities of each
series affected by the amendment with each series voting as a separate class.
The holders of a majority in principal amount of the then outstanding Debt
Securities of any series may also waive compliance in a particular instance by
the Company with any provision of the Indenture with respect to the Debt
Securities of that series; provided, however, that without the consent of each
holder of Debt Securities affected, an amendment or waiver may not (i) reduce
the percentage of the principal amount of Debt Securities whose holders must
consent to an amendment or waiver; (ii) reduce the rate or change the time for
payment of interest on any Debt Security (including default interest); (iii)
reduce the principal of, premium, if any, or change the fixed maturity of any
Debt Security, or reduce the amount of, or postpone the date fixed for,
redemption or the payment of any sinking fund or analogous obligation with
respect thereto; (iv) make any Debt Security payable in currency other than that
stated in the Debt Security; (v) make any change in the provisions concerning
waivers of Default or Events of Default by holders or the rights of holders to
recover the principal of, premium, if any, or interest on, any Debt Security;
(vi) waive a default in the payment of the principal of, or interest on, any
Debt Security, except as otherwise provided in the Indenture or (vii) reduce the
principal amount of Original Issue Discount Securities payable upon acceleration
of the maturity thereof. The Company and the Trustee may amend the Indenture or
the Debt Securities without notice to or the consent of any holder of a Debt
Security: (i) to cure any ambiguity, defect or inconsistency; (ii) to comply
with the Indenture's provisions with respect to successor corporations; (iii) to
comply with any requirements of the Commission in connection with the
qualification of the Indenture under the TIA; (iv) to provide for uncertificated
Debt Securities in addition to or in place of certificated Debt Securities; (v)
to add to, change or eliminate any of the provisions of the Indenture in respect
of one of more series of Debt Securities, provided, however, that any such
addition, change or elimination (A) shall neither (1) apply to any Debt Security
of any series created prior to the execution of such amendment and entitled to
the benefit of such provision, nor (2) modify the rights of a holder of any such
Debt Security with respect to such provision, or (B) shall become effective only
when there is no outstanding Debt Security of any series created prior to such
amendment and entitled to the benefit of
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such provision; (vi) to make any change that does not adversely affect in any
material respect the interest of any holder; or (vii) to establish additional
series of Debt Securities as permitted by the Indenture.
The holders of a majority in principal amount of the then outstanding Debt
Securities of any series, by notice to the Trustee, may waive an existing
Default or Event of Default and its consequences except a Default or Event of
Default in the payment of the principal of, or any interest on, any Debt
Security with respect to the Debt Securities of that series; provided, however,
that the holders of a majority in principal amount of the outstanding Debt
Securities of any series may rescind an acceleration and its consequences,
including any related payment default that resulted from such acceleration.
DEFEASANCE OF DEBT SECURITIES AND CERTAIN COVENANTS IN CERTAIN CIRCUMSTANCES
LEGAL DEFEASANCE. Unless otherwise specified in the applicable Prospectus
Supplement, the Indenture will provide that the Company may be discharged from
any and all obligations in respect of the Debt Securities of any series (except
for certain obligations to register the transfer or exchange of Debt Securities
of such series, to replace stolen, lost or mutilated Debt Securities of such
series, and to maintain paying agencies) upon the deposit with the Trustee, in
trust, of money and/or U.S. government obligations, that, through the payment of
interest and principal in respect thereof in accordance with their terms, will
provide money in an amount sufficient in the opinion of a nationally recognized
firm of independent public accountants to pay and discharge each installment of
principal, premium, if any, and interest, if any, on and any mandatory sinking
fund payments in respect of the Debt Securities of such series on the stated
maturity of such payments in accordance with the terms of the Indenture and such
Debt Securities. Such discharge may occur only if, among other things, the
Company has received from, or there has been published by, the United States
Internal Revenue Service a ruling, or, since the date of execution of the
Indenture, there has been a change in the applicable United States federal
income tax law, in either case to the effect that holders of the Debt Securities
of such series will not recognize income, gain or loss for United States federal
income tax purposes as a result of such deposit, defeasance and discharge and
will be subject to United States federal income tax on the same amount and in
the same manner and at the same times as would have been the case if such
deposit, defeasance and discharge had not occurred.
DEFEASANCE OF CERTAIN COVENANTS. Unless otherwise specified in the
applicable Prospectus Supplement, the Indenture will provide that, upon
compliance with certain conditions, the Company may omit to comply with the
restrictive covenants contained in the Indenture, as well as any additional
covenants or Events of Default contained in a supplement to the Indenture, a
Board Resolution or an Officers' Certificate delivered pursuant thereto. The
conditions include: the deposit with the Trustee of money and/or U.S. government
obligations, that, through the payment of interest and principal in respect
thereof in accordance with their terms, will provide money in an amount
sufficient in the opinion of a nationally recognized firm of independent public
accountants to pay principal, premium, if any, and interest, if any, on and any
mandatory sinking fund payments in respect of the Debt Securities of such series
on the stated maturity of such payments in accordance with the terms of the
Indenture and such Debt Securities; and the delivery to the Trustee of an
opinion of counsel to the effect that the holders of the Debt Securities of such
series will not recognize income, gain or loss for United States federal income
tax purposes as a result of such deposit and related covenant defeasance and
will be subject to United States federal income tax in the same amount and in
the same manner and at the same times as would have been the case if such
deposit and related covenant defeasance had not occurred.
DEFEASANCE AND EVENTS OF DEFAULT. In the event the Company exercises its
option to omit compliance with certain covenants of the Indenture with respect
to any series of Debt Securities and the Debt Securities of such series are
declared due and payable because of the occurrence of any Event of Default, the
amount of money and/or U.S. government obligations on deposit with the Trustee
will be sufficient to pay amounts due on the Debt Securities of such series at
the time of their stated maturity but may not be sufficient to pay amounts due
on the Debt Securities of such series at the time of the acceleration resulting
from such Event of Default. However, the Company will remain liable for such
payments.
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REGARDING THE TRUSTEE
The Trustee with respect to any series of Debt Securities will be identified
in the Prospectus Supplement relating to such Debt Securities. The Indenture and
provisions of the TIA incorporated by reference therein contain certain
limitations on the rights of the Trustee, should it become a creditor of the
Company, to obtain payment of claims in certain cases, or to realize on certain
property received in respect of any such claim, as security or otherwise. The
Trustee and its affiliates may engage in, and will be permitted to continue to
engage in, other transactions with the Company and its affiliates; PROVIDED,
HOWEVER, that if it acquires any conflicting interest (as defined in the TIA),
it must eliminate such conflict or resign.
The holders of a majority in principal amount of the then outstanding Debt
Securities of any series will have the right to direct the time, method and
place of conducting any proceeding for exercising any remedy available to the
Trustee. The TIA and the Indenture provide that in case an Event of Default
shall occur (and be continuing), the Trustee will be required, in the exercise
of its rights and powers, to use the degree of care and skill of a prudent
person in the conduct of such person's affairs. Subject to such provision, the
Trustee will be under no obligation to exercise any of its rights or powers
under the Indenture at the request of any of the holders of the Debt Securities
issued thereunder, unless they have offered to the Trustee indemnity
satisfactory to it.
DESCRIPTION OF PREFERRED STOCK
Under the Restated Certificate of Incorporation of the Company (the
"Certificate of Incorporation"), shares of Preferred Stock may be issued from
time to time, in one or more classes or series, as authorized by the Board of
Directors, generally without the approval of the stockholders.
The Company has authorized 75,000 shares of Series A Exchangeable Preferred
Stock, 75,000 shares of Series B Exchangeable Preferred Stock and 150,000 shares
of Series C Exchangeable Preferred Stock. At December 31, 1997, the Company had
(i) 65,625 shares issued and 17,099 shares outstanding of Series A, (ii) 65,625
shares issued and 55,665 shares outstanding of Series B, and (iii) 131,250
shares issued and outstanding of Series C. The holders of Exchangeable Preferred
Stock are entitled to receive cumulative dividends at the rate of $7.00 per year
on each share of Exchangeable Preferred Stock. At December 31, 1997, dividends
accumulated and unpaid were approximately $7.4 million. Shares of Exchangeable
Preferred Stock are exchangeable for a number of shares of Common Stock of the
Company determined by multiplying the total number of exchangeable shares being
exchanged by the sum of $100 plus all dividends accumulated and unpaid on each
share being exchanged and dividing such amount by the last reported sales price
of the Company's Common Stock on the New York Stock Exchange at the close of
business on the business day next preceding the day of exchange. Holders of the
Exchangeable Preferred Stock have no voting rights, except on actions which
would affect their exchange rights or on actions to increase the authorized
number of exchangeable shares.
Prior to issuance of shares of each series, the Board of Directors is
required by the General Corporation Law of the State of Delaware (the "DGCL")
and the Certificate of Incorporation to adopt resolutions and file a Certificate
of Designation (the "Certificate of Designation") with the Secretary of State of
the State of Delaware, fixing for each such class or series the designations,
powers, preferences and rights of the shares of such class or series and the
qualifications, limitations or restrictions thereon, including, but not limited
to, dividend rights, dividend rate or rates, conversion rights, voting rights,
rights and terms of redemption (including sinking fund provisions), the
redemption price or prices, and the liquidation preferences as are permitted by
the DGCL. The Board of Directors could authorize the issuance of shares of
Preferred Stock with terms and conditions which could have the effect of
discouraging a takeover or other transaction which holders of some, or a
majority, of such shares might believe to be in their best interests or in which
holders of some, or a majority, of such shares might receive a premium for their
shares over the then-market price of such shares.
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Subject to limitations prescribed by the DGCL, the Certificate of
Incorporation and the Amended and Restated Bylaws of the Company (the "Bylaws"),
the Board of Directors is authorized to fix the number of shares constituting
each class or series of Preferred Stock and the designations and powers,
preferences and relative, participating, optional or other special rights,
including such provisions as may be desired concerning voting, redemption,
dividends, dissolution or the distribution of assets, conversion or exchange,
and such other subjects or matters as may be fixed by resolution of the Board of
Directors or duly authorized committee thereof. The Preferred Stock offered
hereby will, when issued, be fully paid and nonassessable and will not have, or
be subject to, any preemptive or similar rights.
The applicable Prospectus Supplement or Prospectus Supplements will describe
the following terms of the class or series of Preferred Stock in respect of
which this Prospectus is being delivered: (1) the title and stated value of such
Preferred Stock; (2) the number of shares of such Preferred Stock offered, the
liquidation preference per share and the purchase price of such Preferred Stock;
(3) the dividend rate(s), period(s) and/or payment date(s) or method(s) of
calculation thereof applicable to such Preferred Stock; (4) whether dividends
shall be cumulative or non-cumulative and, if cumulative, the date from which
dividends on such Preferred Stock shall accumulate; (5) the procedures for any
auction and remarketing, if any, for such Preferred Stock; (6) the provisions
for a sinking fund, if any, for such Preferred Stock; (7) the provisions for
redemption, if applicable, of such Preferred Stock; (8) any listing of such
Preferred Stock on any securities exchange or market; (9) the terms and
conditions, if applicable, upon which such Preferred Stock will be convertible
into Common Stock or another series of Preferred Stock of the Company, including
the conversion price (or manner of calculation thereof) and conversion period;
(10) the terms and conditions, if applicable, upon which Preferred Stock will be
exchangeable into Debt Securities of the Company, including the exchange price
(or manner of calculation thereof) and exchange period; (11) voting rights, if
any, of such Preferred Stock; (12) a discussion of any material and/or special
United States federal income tax considerations applicable to such Preferred
Stock; (13) whether interests in such Preferred Stock will be represented by
depositary shares; (14) the relative ranking and preferences of such Preferred
Stock as to dividend rights and rights upon liquidation, dissolution or winding
up of the affairs of the Company; (15) any limitations on issuance of any class
or series of Preferred Stock ranking senior to or on a parity with such series
of Preferred Stock as to dividend rights and rights upon liquidation,
dissolution or winding up of the affairs of the Company; and (16) any other
specific terms, preferences, rights, limitations or restrictions on such
Preferred Stock.
Unless otherwise specified in the Prospectus Supplement, the Preferred Stock
will, with respect to dividend rights and rights upon liquidation, dissolution
or winding up of the Company rank: (i) senior to all classes or series of Common
Stock of the Company, and to all equity securities issued by the Company the
terms of which specifically provide that such equity securities rank junior to
such Preferred Stock with respect to dividend rights or rights upon liquidation,
dissolution or winding up of the Company; (ii) on a parity with all equity
securities issued by the Company that do not rank senior or junior to the
Preferred Stock with respect to dividend rights or rights upon liquidation,
dissolution or winding up of the Company; and (iii) junior to all equity
securities issued by the Company the terms of which do not specifically provide
that such equity securities rank on a parity with or junior to the Preferred
Stock with respect to dividend rights or rights upon liquidation, dissolution or
winding up of the Company (including any entity with which the Company may be
merged or consolidated or to which all or substantially all the assets of the
Company may be transferred or which transfers all or substantially all of the
assets of the Company). As used for these purposes, the term "equity securities"
does not include convertible debt securities.
SECTION 203 OF THE DGCL
The Company is subject to the "business combination" statute of the DGCL, an
anti-takeover law enacted in 1988. In general, Section 203 of the DGCL prohibits
a publicly-held Delaware corporation from engaging in a "business combination"
with an "interested stockholder," for a period of three years after the date of
the transaction in which a person became an "interested stockholder," unless (i)
prior to such
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date the board of directors of the corporation approved either the "business
combination" or the transaction which resulted in the stockholder becoming an
"interested stockholder," (ii) upon consummation of the transaction which
resulted in the stockholder becoming an "interested stockholder," the
"interested stockholder" owned at least 85% of the voting stock of the
corporation outstanding at the time the transaction commenced, excluding for
purposes of determining the number of shares outstanding those shares owned (1)
by persons who are directors and also officers and (2) employee stock plans in
which employee participants do not have the right to determine confidentially
whether shares held subject to the plan will be tendered in a tender or exchange
offer, or (iii) on or subsequent to such date the "business combination" is
approved by the board of directors and authorized at an annual or special
meeting of stockholders by the affirmative vote of a least 66% of the
outstanding voting stock which is not owned by the "interested stockholder." A
"business combination" includes mergers, stock or asset sales and other
transactions resulting in a financial benefit to the "interested stockholders."
An "interested stockholder" is a person who, together with affiliates and
associates, owns (or within three years, did own) 15% or more of the
corporation's voting stock. Although Section 203 permits the Company to elect
not to be governed by its provisions, the Company to date has not made this
election. As a result of the application of Section 203, potential acquirors of
the Company may be discouraged from attempting to effect an acquisition
transaction with the Company, thereby possibly depriving holders of the
Company's securities of certain opportunities to sell or otherwise dispose of
such securities at above-market prices pursuant to such transactions.
PLAN OF DISTRIBUTION
The Company may sell the Securities to one or more underwriters for public
offering and sale by them and may also sell the Securities to investors directly
or through agents. Any such underwriter or agent involved in the offer and sale
of Securities will be named in the applicable Prospectus Supplement. The Company
has reserved the right to sell or exchange Securities directly to investors on
its own behalf in those jurisdictions where and in such manner as it is
authorized to do so.
The distribution of the Securities may be effected from time to time in one
or more transactions at a fixed price or prices, which may be changed, or at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices, or at negotiated prices. Sales of Common Stock offered
hereby may be effected from time to time in one or more transactions on the New
York Stock Exchange or in negotiated transactions or a combination of such
methods. The Company may also, from time to time, authorize dealers, acting as
the Company's agents, to offer and sell Securities upon the terms and conditions
as are set forth in the applicable Prospectus Supplement. In connection with the
sale of Securities, underwriters may receive compensation from the Company in
the form of underwriting discounts or commissions and may also receive
commissions from purchasers of the Securities for whom they may act as agent.
Underwriters may sell Securities to or through dealers, and such dealers may
receive compensation in the form of discounts, concessions or commissions from
the underwriters and/or commissions from the purchasers for whom they may act as
agent. Any such underwriter, dealer or agent will be identified, and any such
compensation received from the Company will be described, in the Prospectus
Supplement. Unless otherwise indicated in a Prospectus Supplement, an agent will
be acting on a best efforts basis and a dealer will purchase Securities as a
principal, and may then resell such Securities at varying prices to be
determined by the dealer.
Any underwriting compensation paid by the Company to underwriters or agents
in connection with the offering of Securities, and any discounts, concessions or
commissions allowed by underwriters to participating dealers, will be set forth
in the applicable Prospectus Supplement. Dealers and agents participating in the
distribution of Securities may be deemed to be underwriters, and any discounts
and commissions received by them and any profit realized by them on resale of
the Securities may be deemed to be underwriting discounts and commissions.
Underwriters, dealers and agents may be entitled, under agreements entered into
with the Company, to indemnification against and contribution toward certain
16
<PAGE>
civil liabilities, including liabilities under the Securities Act, and to
reimbursement by the Company for certain expenses.
To facilitate an offering of Securities, certain persons participating in
the offering may engage in transactions that stabilize, maintain, or otherwise
affect the price of the Securities. This may include over-allotments or short
sales of the Securities, which involves the sale by persons participating in the
offering of more Securities than have been sold to them by the Company. In such
circumstances, such persons would cover such over-allotments or short positions
by purchasing in the open market or by exercising the over-allotment option
granted to such persons. In addition, such persons may stabilize or maintain the
price of the Securities by bidding for or purchasing Securities in the open
market or by imposing penalty bids, whereby selling concessions allowed to
dealers participating in any such offering may be reclaimed if Securities sold
by them are repurchased in connection with stabilization transactions. The
effect of these transactions may be to stabilize or maintain the market price of
the Securities at a level above that which might otherwise prevail in the open
market. Such transactions, if commenced, may be discontinued at any time.
Certain of the underwriters, dealers or agents and their associates may
engage in transactions with and perform services for the Company in the ordinary
course of business, including refinancing of the Company's indebtedness. See
"Use of Proceeds."
LEGAL MATTERS
Certain legal matters with respect to the Securities offered hereby will be
passed upon for the Company by Latham & Watkins, San Francisco, California.
Certain legal matters will be passed upon for any agents or underwriters by
counsel for such agents or underwriters identified in the applicable Prospectus
Supplement. Certain partners of Latham & Watkins, members of their families,
related persons and others, have an indirect interest, through limited
partnerships, in less than 1% of the Common Stock. Such persons do not have the
power to vote or dispose of such shares of Common Stock.
EXPERTS
The consolidated financial statements of Owens-Illinois, Inc. appearing in
the Company's Annual Report (Form 10-K) for the year ended December 31, 1997,
have been audited by Ernst & Young LLP, independent auditors, as set forth in
their report thereon included therein and incorporated herein by reference. Such
consolidated financial statements are incorporated herein by reference in
reliance upon such report given upon the authority of such firm as experts in
accounting and auditing.
The combined financial statements of BTR Packaging appearing in the Current
Report on Form 8-K of Owens-Illinois, Inc. dated April 16, 1998, have been
audited by Ernst & Young, independent auditors, as set forth in their report
thereon included therein and incorporated herein by reference. Such combined
financial statements are incorporated herein by reference in reliance upon such
report given upon the authority of such firm as experts in accounting and
auditing.
No person has been authorized to give any information or to make any
representation in connection with this offering other than those contained in
this Prospectus, and, if given or made, such information or representation must
not be relied upon as having been so authorized. This Prospectus does not
constitute an offer to sell or a solicitation of an offer to buy by anyone in
any jurisdiction in which such offer to sell is not authorized, or in which the
person is not qualified to do so or to any person to whom it is unlawful to make
such offer or solicitation. Neither the delivery of this Prospectus nor any sale
hereunder shall, under any circumstances, create any implication that there has
been no change in the affairs of the Company since the date hereof or that the
information contained herein is correct as of any time subsequent to its date.
17
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION IN CONNECTION WITH THIS OFFERING OTHER THAN THOSE CONTAINED IN
THIS PROSPECTUS, AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST
NOT BE RELIED UPON AS HAVING BEEN SO AUTHORIZED. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY BY ANYONE IN
ANY JURISDICTION IN WHICH SUCH OFFER TO SELL IS NOT AUTHORIZED, OR IN WHICH THE
PERSON IS NOT QUALIFIED TO DO SO OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE
SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE
HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS
BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THAT THE
INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
---------
<S> <C>
AVAILABLE INFORMATION................................ 2
INFORMATION INCORPORATED BY REFERENCE................ 2
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS...... 4
THE COMPANY.......................................... 4
USE OF PROCEEDS...................................... 5
RATIOS OF EARNINGS TO FIXED CHARGES AND EARNINGS TO
COMBINED FIXED CHARGES AND PREFERRED STOCK
DIVIDENDS.......................................... 6
DESCRIPTION OF DEBT SECURITIES....................... 7
DESCRIPTION OF PREFERRED STOCK....................... 14
SECTION 203 OF THE DGCL.............................. 15
PLAN OF DISTRIBUTION................................. 16
LEGAL MATTERS........................................ 17
EXPERTS.............................................. 17
</TABLE>
[LOGO]
OWENS-ILLINOIS, INC.
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
------------------
PROSPECTUS
------------------------
, 1998
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses to be paid by the Company in connection with the distribution
of the securities being registered are as set forth in the following table:
<TABLE>
<S> <C>
Securities and Exchange Commission Fee.......................... $1,180,000
*Rating Agency Fees............................................. 400,000
*Legal Fees and Expenses........................................ 400,000
*Accounting Fees and Expenses................................... 100,000
*Printing Expenses.............................................. 150,000
*Blue Sky Fees.................................................. 10,000
*Trustee/Issuing & Paying Agent Fees and Expenses............... 15,000
*Transfer Agent Fees & Expenses................................. 15,000
*Miscellaneous.................................................. 130,000
---------
*Total.................................................... $2,400,000
---------
---------
</TABLE>
- ------------------------
* Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company is a Delaware corporation. Subsection (b)(7) of Section 102 of
the Delaware General Corporation Law (the "DGCL"), enables a corporation in its
original certificate of incorporation or an amendment thereto to eliminate or
limit the personal liability of a director to the corporation or its
stockholders for monetary damages for violations of the director's fiduciary
duty, except (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii)
pursuant to Section 174 of the DGCL (providing for liability of directors for
unlawful payment of dividends or unlawful stock purchases or redemptions) or
(iv) for any transaction from which a director derived an improper personal
benefit.
Subsection (a) of Section 145 of the DGCL empowers a corporation to
indemnify any director or officer, or former director or officer, who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation),
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred in connection with such action,
suit or proceeding provided that such director or officer acted in good faith in
a manner reasonably believed to be in, or not opposed to, the best interests of
the corporation, and, with respect to any criminal action or proceeding,
provided further that such director or officer had no reasonable cause to
believe his conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify any
director or officer, or former director or officer, who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that such person acted in any of the capacities set forth
above, against expenses (including attorneys' fees) actually and reasonably
incurred in connection with the defense or settlement of such action or suit
provided that such director or officer acted in good faith and in a manner
reasonably believed to be in, or not opposed to, the best interests of the
corporation, except that no indemnification may be made in respect to any claim,
issue or matter as to which such director or officer shall have been adjudged to
be liable to the corporation unless and only to the extent that the Court of
Chancery or the
II-1
<PAGE>
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all of the
circumstances of the case, such director or officer is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
Section 145 further provides that to the extent a director or officer of a
corporation has been successful in the defense of any action, suit or proceeding
referred to in subsections (a) and (b) or in the defense of any claim, issue or
matter therein, he shall be indemnified against expenses (including attorneys
fees) actually and reasonably incurred by him in connection therewith; that
indemnification and advancement of expenses provided for, by, or granted
pursuant to Section 145 shall not be deemed exclusive of any other rights to
which the indemnified party may be entitled; and empowers the corporation to
purchase and maintain insurance on behalf of a director or officer of the
corporation against any liability asserted against him or incurred by him in any
such capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liabilities under
Section 145.
Article VII of the Restated Certificate of Incorporation (filed as Exhibit
3.1) of the Company provides for the elimination of liability of directors to
the extent permitted by Section 102(b)(7) of the DGCL. Article III, Section 13
of the By-Laws of the Company (filed as Exhibit 3.2) provides for
indemnification of the officers and directors of the Company to the extent
permitted by applicable law.
The Company has in effect insurance policies in the amount of $60 million
covering all of its directors and officers.
ITEM 16. EXHIBITS
<TABLE>
<C> <S>
*1.1 Form of Underwriting Agreement.
3.1 Restated Certificate of Incorporation of Owens-Illinois, Inc., which was filed as
Exhibit 3.1 to the Registration Statement, File No. 33-43224, and is incorporated
by reference herein.
3.2 Bylaws of Owens-Illinois, Inc., as amended, which were filed as Exhibit 3.2 to the
Registration Statement, File No. 33-43224, and are incorporated by reference
herein.
**4.1 Form of Indenture.
**5 Opinion of Latham & Watkins.
12 Statement regarding Computation of Ratios.
23.1 Consent of Ernst & Young LLP.
**23.2 Consent of Latham & Watkins (included in Exhibit 5).
23.3 Consent of McCarter & English.
23.4 Consent of Ernst & Young.
**24 Powers of Attorney.
</TABLE>
- ------------------------
* To be filed by a report on Form 8-K pursuant to Regulation S-K, Item 601(b).
** Previously filed.
ITEM 17. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
the
II-2
<PAGE>
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering
range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that the information required to be included in a
post-effective amendment by paragraphs (a)(1)(i) and (a)(1)(ii) above may
be contained in periodic reports filed by the Registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 and (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
of 1933 and is, therefore unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of their counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
(j) The undersigned Registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under
Subsection (a) of Section 310 of the Trust Indenture Act (the "Act") in
accordance with the rules and regulations prescribed by the Commission under
Section 305(b)(2) of the Act.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933 the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Toledo, Ohio on April 17, 1998.
OWENS-ILLINOIS, INC.
By /s/ THOMAS L. YOUNG
-----------------------------------------
Thomas L. Young
EXECUTIVE VICE PRESIDENT-ADMINISTRATION,
GENERAL COUNSEL AND SECRETARY
Pursuant to the requirements of the Securities Act of 1993, this
registration statement has been signed by each of the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
- ----------------------------------------------------------------------
Chairman of the
Board, Chief
/s/ JOSEPH H. LEMIEUX Executive Officer
- ------------------------------
and Director April 17, 1998
Joseph H. Lemieux (Principal
Executive Officer)
Senior Vice
President, Chief
Financial Officer
/s/ LEE A. WESSELMANN and Director
- ------------------------------
(Principal April 17, 1998
Lee A. Wesselmann Financial Officer
and Principal
Accounting
Officer)
*
- ------------------------------
Director April 17, 1998
Robert J. Dineen
*
- ------------------------------
Director April 17, 1998
Edward A. Gilhuly
*
- ------------------------------
Director April 17, 1998
James H. Greene, Jr.
*
- ------------------------------
Director April 17, 1998
Henry R. Kravis
*
- ------------------------------
Director April 17, 1998
Robert J. Lanigan
*
- ------------------------------
Director April 17, 1998
Robert I. MacDonnell
*
- ------------------------------
Director April 17, 1998
John J. McMackin, Jr.
*
- ------------------------------
Director April 17, 1998
Michael W. Michelson
*
- ------------------------------
Director April 17, 1998
George R. Roberts
*By /s/ THOMAS L. YOUNG
-------------------------
Thomas L. Young
ATTORNEY-IN-FACT
II-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<C> <S>
*1.1 Form of Underwriting Agreement.
3.1 Restated Certificate of Incorporation of Owens-Illinois, Inc., which was filed as
Exhibit 3.1 to the Registration Statement File No. 33-43224, and is incorporated
by reference herein.
3.2 Bylaws of Owens-Illinois, Inc., as amended, which were filed as Exhibit 3.2 to the
Registration Statement, File No. 33-43224, and are incorporated by reference
herein.
**4.1 Form of Indenture.
**5 Opinion of Latham & Watkins.
12 Statement regarding Computation of Ratios.
23.1 Consent of Ernst & Young LLP.
**23.2 Consent of Latham & Watkins (included in Exhibit 5).
23.3 Consent of McCarter & English.
23.4 Consent of Ernst & Young.
**24 Powers of Attorney.
</TABLE>
- ------------------------
* To be filed by a report on Form 8-K pursuant to Regulation S-K, Item 601(b).
** Previously filed.
<PAGE>
EXHIBIT 12
OWENS-ILLINOIS, INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
AND EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
(MILLIONS OF DOLLARS, EXCEPT RATIOS)
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
-----------------------------------------------------
1997 1996 1995 1994 1993
--------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C>
Earnings (loss) from continuing operations before income taxes,
minority share owners' interests, extraordinary items and
cumulative effect of accounting change........................ $ 452.3 $ 324.1 $ 310.0 $ 171.3 $ (294.5)
Pretax earnings of majority-owned subsidiary not consolidated... 8.7 4.3
Less: Equity earnings........................................... (17.9) (15.2) (14.4) (22.3) (25.3)
Add: Total fixed charges deducted from earnings................. 324.1 324.3 321.1 298.0 316.4
Proportional share of pretax earnings of 50%
owned associates.......................................... 2.8 18.6
Dividends received from less than 50% owned
associates................................................ 4.8 2.7 3.7 2.9 4.9
--------- --------- --------- --------- ---------
Earnings available for payment of fixed charges......... $ 766.1 $ 635.9 $ 620.4 $ 458.6 $ 24.4
--------- --------- --------- --------- ---------
--------- --------- --------- --------- ---------
Fixed charges (including the Company's proportional share of 50%
owned associates):
Interest expense............................................ $ 298.7 $ 297.6 $ 294.6 $ 273.1 $ 284.6
Portion of operating lease rental deemed to be
interest.................................................. 21.3 21.7 21.5 19.8 20.3
Amortization of deferred financing costs and debt
discount expense.......................................... 4.1 5.0 5.0 5.1 11.5
--------- --------- --------- --------- ---------
Total fixed charges deducted from earnings and total
fixed charges......................................... $ 324.1 $ 324.3 $ 321.1 $ 298.0 $ 316.4
Preferred stock dividends (increased to assumed pre-tax
amount)....................................................... 2.2 2.2 2.6 3.1 3.0
--------- --------- --------- --------- ---------
Combined fixed charges and preferred stock dividends............ $ 326.3 $ 326.5 $ 323.7 $ 301.1 $ 319.4
--------- --------- --------- --------- ---------
--------- --------- --------- --------- ---------
Ratio of earnings to fixed charges.............................. 2.4 2.0 1.9 1.5
Deficiency of earnings available to cover fixed charges......... $ 292.0
Ratio of earnings to combined fixed charges and preferred stock
dividends..................................................... 2.3 1.9 1.9 1.5
Deficiency of earnings available to cover combined fixed charges
and preferred stock dividends................................. $ 295.0
</TABLE>
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
Amendment No. 1 to the Registration Statement (Form S-3 No. 333-47519) and
related Prospectus of Owens-Illinois, Inc. and to the incorporation by reference
therein of our report dated February 3, 1998 (except for information in the
section entitled "Subsequent Event" on page 63, as to which the date is March 6,
1998), with respect to the consolidated financial statements and schedule of
Owens-Illinois, Inc. included in its Annual Report (Form 10-K) for the year
ended December 31, 1997, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Toledo, Ohio
April 16, 1998
<PAGE>
EXHIBIT 23.3
CONSENT OF MCCARTER & ENGLISH
April 16, 1998
Ladies and Gentlemen:
We consent to the reference to our firm contained under the caption
"Contingencies" in the Annual Report on Form 10-K of Owens-Illinois, Inc. for
the year ended December 31, 1997 being incorporated by reference in Amendment
No. 1 to the Registration Statement (Form S-3 No. 333-47519).
Very truly yours,
/s/ McCarter & English
<PAGE>
EXHIBIT 23.4
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
Amendment No. 1 to the Registration Statement (Form S-3 No. 333-47519) and
related Prospectus of Owens-Illinois, Inc. and to the incorporation by reference
therein of our report dated April 7, 1998, with respect to the combined
financial statements of BTR Packaging included in the Current Report on Form 8-K
of Owens-Illinois, Inc. dated April 16, 1998, filed with the Securities and
Exchange Commission.
/s/ Ernst & Young
Melbourne, Australia
April 16, 1998
