<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 3, 1997
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------
AVERY DENNISON CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 95-1492269
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
150 NORTH ORANGE GROVE BOULEVARD
PASADENA, CALIFORNIA 91103
(818) 304-2000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
ROBERT G. VAN SCHOONENBERG, ESQ.
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
AVERY DENNISON CORPORATION
150 NORTH ORANGE GROVE BOULEVARD
PASADENA, CALIFORNIA 91103
(818) 304-2000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S AGENT FOR SERVICE)
-------------------
COPY TO
THOMAS W. DOBSON, ESQ.
LATHAM & WATKINS
633 WEST FIFTH STREET
LOS ANGELES, CALIFORNIA 90071
(213) 485-1234
-------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this Registration Statement.
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, please check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
-------------------
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
-------------------
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=======================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER UNIT(1) OFFERING PRICE REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $1.00 par value (2) (3)... 767,200 $35.81 $27,473,432 $8,326
Preferred Share Purchase Rights......... 767,200(4) (4) (4) $100(4)
=======================================================================================================================
</TABLE>
(1) Calculated pursuant to Rule 457(g) under the Securities Act of 1933, as
amended (the "Securities Act"). Based on the market value of the Common
Stock (which is the average of the high and low prices of the Common Stock
reported on the New York Stock Exchange on December 27, 1996)
(2) Shares issuable upon exercise of warrants to purchase Common Stock expiring
February 21, 1997.
(3) Pursuant to Rule 416 under the Securities Act, there are also being
registered hereunder such indeterminate number of shares of Common Stock as
may be issuable from time to time pursuant to anti-dilution provisions.
(4) Rights are attached to and trade with the Avery Common Stock. The value
attributable to such Rights, if any, is reflected in the market price of the
Avery Common Stock. Fee paid represents the minimum statutory fee pursuant
to Section 6(b) of the Securities Act.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT 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.
================================================================================
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED JANUARY 3, 1997
-------------------
AVERY DENNISON CORPORATION
767,200 SHARES OF COMMON STOCK
ISSUABLE PURSUANT TO WARRANTS
-------------------
This Prospectus relates to 767,200 shares of common stock, par value $1.00
per share (the "Common Stock"), of Avery Dennison Corporation (the "Company"),
issuable upon exercise of certain common stock purchase warrants expiring
at 5 p.m. Geneva time on February 21, 1997 (the "Warrants"). The Warrants were
originally issued by Dennison Manufacturing Company ("Dennison") pursuant to a
Warrant Agreement, dated February 27, 1985, as amended by the Supplemental
Warrant Agreement, dated November 28, 1990 (together, the "Warrant Agreement").
In October 1990, the Company merged one of its subsidiaries into Dennison (the
"Merger"), as a result of which Dennison became a wholly-owned subsidiary of the
Company, and the Warrants became exercisable for Company Common Stock. Pursuant
to the Warrant Agreement, each Warrant is exercisable prior to its expiration
for 11.2 shares of Common Stock (including 11.2 preferred share purchase rights)
at an exercise price of 40.175 Swiss francs. Holders of the Warrants may
exercise their Warrants upon presentation to the Company's Warrant Agent First
Chicago N.B.D. (the "Warrant Agent") of the Warrant Certificate, a duly executed
election to exercise (Annex 1 to the Warrant Certificate), and payment (in cash
or by bank check) of the aggregate exercise price, plus the amount of any
applicable taxes as provided in the Warrant Agreement, in lawful money of the
Confederation of Switzerland. The Warrants may also be presented for exercise to
any paying agent for Dennison's 5 1/8% Swiss Franc Bonds due through 1997 for
forwarding to the Warrant Agent. The Common Stock is being offered for sale
pursuant to this Prospectus, from time to time by the Company upon exercise of
the Warrants. See "Use of Proceeds."
The exercise price and the number of shares issuable upon exercise of each
Warrant after the Merger have been further adjusted to give effect to the
payment of a stock dividend by the Company on December 19, 1996 of one (1) share
of Common Stock for each outstanding share of Common Stock to stockholders of
record on December 6, 1996. All exercise prices and share numbers set forth in
this Prospectus reflect these adjustments.
The last reported sale price of the Common Stock on the New York Stock
Exchange Composite Tape on December 31, 1996 was $35.375 per share.
-------------------
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.
-------------------
<TABLE>
<CAPTION>
Exercise Price Proceeds to
Per Share(1) Avery Dennison
-------------- --------------
<S> <C> <C>
Per Share............. CHF40.175 CHF40.175
Total................. CHF31,625,760 CHF31,625,760
</TABLE>
- -------
(1) The purchase price is payable in Swiss francs. The noon buying rate for
Swiss francs on December 31, 1996 was CHF 1.339 per $1.00.
All expenses of the offering will be borne by the Company. It is estimated
that such expenses to be borne by the Company, including accounting and legal
fees, will approximate $52,000.
TRANSFER AND WARRANT AGENT:
FIRST CHICAGO N.B.D.
90 LONG ACRE
LONDON, WC2E9RB
ENGLAND
The date of this Prospectus is , 1997
---------
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024, Judiciary Plaza,
450 Fifth Street, N.W., Washington, D.C. 20549, and at the following Regional
Offices of the Commission: New York Regional Office, 7 World Trade Center,
Suite 1300, New York, New York 10048; and Chicago Regional Office, Citicorp
Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of
such materials can be obtained from the Public Reference Branch of the
Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549 at prescribed rates, or may be examined without charge at the offices
of the Commission or accessed through the Commission's Internet address at
http://www.sec.gov. Such material can also be inspected at the offices of the
New York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005 and the
Pacific Stock Exchange Incorporated, 301 Pine Street, San Francisco, California
94104, on which exchanges the Company's common stock is listed.
This Prospectus constitutes a part of a Registration Statement on Form S-3
(together with all amendments and exhibits, referred to as the "Registration
Statement") filed by the Company with the Commission under the Securities Act of
1933, as amended (the "Securities Act"). This Prospectus omits certain of the
information contained in the Registration Statement in accordance with the rules
and regulations of the Commission, and reference is hereby made to the
Registration Statement for further information with respect to the Company and
the Common Stock offered hereby. Any statements contained herein concerning the
provisions of any documents are not necessarily complete, and, in each instance,
reference is made to such copy filed as a part of the Registration Statement or
otherwise filed with the Commission. Each such statement is qualified in its
entirety by such reference. The Registration Statement may be inspected without
charge at the office of the Commission at Room 1024, Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549, and copies thereof may be obtained from
the Commission at prescribed rates, or may be examined without charge at the
offices of the Commission or accessed through the Commission's Internet address
at http://www.sec.gov.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's (i) Annual Report on Form 10-K for the fiscal year ended
December 30, 1995; (ii) Quarterly Report on Form 10-Q for the quarter ended
March 30, 1996; (iii) Quarterly Report on Form 10-Q for the quarter ended June
29, 1996; (iv) Quarterly Report on Form 10-Q for the quarter ended September 28,
1996; and (v) Current Report on Form 8-K dated October 25, 1996 are incorporated
in and made a part of this Prospectus.
All documents filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the termination of the offering of the Common Stock
shall be deemed to be incorporated by reference in this Prospectus and to be a
part hereof from the date of filing of such documents. Any statement contained
herein or in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained in any subsequently filed
document deemed to be incorporated herein or contained in the accompanying
Prospectus Supplement 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 the Registration Statement or this
Prospectus.
The Company will provide without charge to each person to whom a copy of
this Prospectus is delivered, on the request of any such person, a copy of any
or all of the documents incorporated herein by reference (other than exhibits to
such documents, unless such exhibits are specifically incorporated by reference
into the documents that this Prospectus incorporates). Requests for such copies
should be directed to the Secretary, Avery Dennison Corporation, 150 North
Orange Grove Boulevard, Pasadena, California 91103; telephone (818) 304-2000.
2
<PAGE>
THE COMPANY
The principal business of the Company is the production of self-adhesive
materials. Some of these materials are "converted" into labels and other
products through embossing, printing, stamping and die-cutting, and some are
sold in unconverted form as base materials, tapes and reflective sheeting. The
Company also manufactures and sells a variety of office products and other items
not involving pressure-sensitive components, such as notebooks, three-ring
binders, organizing systems, felt-tip markers, glues, fasteners, business forms,
tickets, tags and a diversified line of labeling systems and imprinting
equipment.
The Company manufactures and sells these products from 200 manufacturing
facilities and sales offices located in 36 countries, and employs approximately
15,500 persons worldwide. Its principal corporate offices are located at 150
North Orange Grove Boulevard, Pasadena, California 91103 (telephone: (818) 304-
2000).
The Company was founded in 1935 by R. Stanton Avery, the Founder and
Chairman Emeritus, incorporated in California in 1946 and reincorporated in
Delaware in 1977. On October 16, 1990, a wholly owned subsidiary of the Company
merged into Dennison, Dennison became a wholly owned subsidiary of the Company,
and the Company changed its name from Avery International Corporation to Avery
Dennison Corporation. References herein to the "Company" are to Avery Dennison
Corporation and its subsidiaries, unless the context otherwise requires.
USE OF PROCEEDS
The Company intends to use the net proceeds from the sale of the Common
Stock for general corporate purposes.
PLAN OF DISTRIBUTION
The Company is offering 767,200 shares of Common Stock to the holders of
the Warrants. The holder of each Warrant is entitled to purchase 11.2 shares of
Common Stock (including 11.2 preferred share purchase rights) at an exercise
price of 40.175 Swiss francs. Prior to their expiration at 5 p.m. Geneva time on
February 21, 1997, Warrants may be exercised upon presentation to the Company's
Warrant Agent at the address specified below of the Warrant Certificate, a duly
executed election to exercise (Annex 1 to the Warrant Certificate), and payment
(in cash or by bank check) of the aggregate exercise price, plus the amount of
any applicable taxes as provided in the Warrant Agreement, in lawful money of
the Confederation of Switzerland. The Warrants may also be presented for
exercise to any paying agent for Dennison's 5 1/8% Swiss Franc Bonds due through
1997 for forwarding to the Warrant Agent.
The Warrant Agent's address for exercise of the Warrants is:
FIRST CHICAGO N.B.D.
90 LONG ACRE
LONDON, WC2E9RB
ENGLAND
Upon receipt by the Warrant Agent during the exercise period of a Warrant
and a duly executed election to exercise, in proper form for exercise, together
with proper payment of the applicable exercise price and taxes, at such office,
the holder shall be deemed to be the holder of record of the number of shares
specified in such form. Fractional shares will not be issued upon exercise of
the Warrants. In lieu thereof, a cash adjustment will be made. If a Warrant
should be exercised in part only, then the Company shall, upon surrender of such
Warrant, execute and deliver a new Warrant evidencing the rights of the Holder
to purchase the balance of the shares of Common Stock purchasable thereunder.
3
<PAGE>
The exercise price and the number of shares of Common Stock purchasable
upon exercise of each Warrant are subject to adjustment from time to time in the
event of stock splits, stock dividends, stock combinations or certain property
or rights distributions to holders of Common Stock. In case of (i) any
reclassification of the Common Stock or capital reorganization of the Company,
(ii) any consolidation, merger or other business combination of the Company with
another entity or (iii) any sale, lease or transfer of all or substantially all
of the assets of the Company, the holder of each of the outstanding Warrants
will have the right, upon subsequent exercise of a Warrant, to purchase the kind
and amount of shares of stock or other securities or property receivable upon
such reclassification, capital reorganization, consolidation, merger, sale,
lease or transfer by a holder of the number of shares of Common Stock that would
have been received upon the exercise of such Warrant immediately prior thereto.
The Warrants do not confer upon the holder any voting or preemptive rights, or
any other rights as a stockholder of the Company.
Holders who offer and sell the shares of Common Stock acquired upon
exercise of the Warrants and any broker-dealer through whom such holder sells
shares may be deemed to be underwriters within the meaning of the Securities
Act. The Company will receive none of the proceeds from any such sales. There
presently are no arrangements or understandings, formal or informal, pertaining
to the distribution of the Shares.
The Common Stock is quoted on the New York Stock Exchange and the Pacific
Stock Exchange under the symbol "AVY".
LEGAL OPINION
The validity of the Common Stock will be passed upon for the Company by
Latham & Watkins.
EXPERTS
The consolidated balance sheet of the Company as of December 30, 1995 and
December 31, 1994, and the related consolidated statements of income,
shareholders' equity, and cash flows for each of the three years in the period
ended December 30, 1995, incorporated by reference in this Prospectus, have been
incorporated herein in reliance on the report, which includes an explanatory
paragraph regarding the Company's adoption of the provisions of the Financial
Accounting Standards Board's Statement of Financial Accounting Standards
("SFAS") No. 106, "Employers' Accounting for Postretirement Benefits Other Than
Pensions", SFAS No. 109, "Accounting for Income Taxes" and SFAS No. 112,
"Employers' Accounting for Postemployment Benefits" during 1993, of Coopers &
Lybrand L.L.P., independent accountants, given on the authority of that firm as
experts in accounting and auditing.
4
<PAGE>
===============================================================================
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN THIS
PROSPECTUS IN CONNECTION WITH THE OFFER MADE BY THIS PROSPECTUS AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER
SHALL UNDER ANY CIRCUMSTANCES CREATE AN IMPLICATION THAT THERE HAS BEEN NO
CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF. THIS PROSPECTUS DOES
NOT CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE IN ANY STATE IN WHICH SUCH
OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER
OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANYONE TO WHOM IT IS UNLAWFUL TO
MAKE SUCH OFFER OR SOLICITATION.
-------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
PROSPECTUS
Available Information.................................................... 2
Incorporation of Certain Documents by Reference.......................... 2
The Company.............................................................. 3
Use of Proceeds.......................................................... 3
Plan of Distribution..................................................... 3
Legal Opinion............................................................ 4
Experts.................................................................. 4
</TABLE>
===============================================================================
===============================================================================
767,200 SHARES
AVERY DENNISON CORPORATION
COMMON STOCK
-------------------
PROSPECTUS
-------------------
===============================================================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.*
<TABLE>
<S> <C>
Securities and Exchange Commission filing fee... $ 8,326
Printing and engraving fees and expenses........ 15,000
Warrant Agent fees and expenses................. 6,000
Legal fees and expenses......................... 20,000
Accounting fees and expenses.................... 2,000
Miscellaneous other expenses.................... 674
-------
Total.................................... $52,000
=======
</TABLE>
- -------
* All expenses are estimates except the Securities and Exchange Commission
filing fee.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware
provides that a corporation shall have the power, and in some cases is required,
to indemnify an agent, including an officer or director, who was or is a party
or is threatened to be made a party to any proceedings, against certain
expenses, judgments, fines, settlements and other amounts under certain
circumstances. Article VI of the Registrant's Bylaws requires indemnification
of the Registrant's officers and directors to the maximum extent permitted by
the Delaware General Corporation Law, and the Registrant maintains insurance
covering certain liabilities of the directors and officers of the Registrant and
its subsidiaries. The Registrant has also entered into contractual arrangements
with its directors and officers pursuant to which such persons may be entitled
to indemnity from the Registrant against certain liabilities arising from the
discharge of their duties in such capacities.
ITEM 16. EXHIBITS.
<TABLE>
<C> <S>
4.1 Restated Articles of Incorporation (incorporated by reference to Proxy Statement dated
February 28, 1977 for Annual Meeting of Stockholders March 30, 1977; located in File
No. 0-225 at Securities and Exchange Commission, 450 5th St., N.W., Washington, D.C.)
4.1.1 Amendment to Certificate of Incorporation, filed April 10, 1984 with Office of Delaware
Secretary of State (incorporated by reference to 1983 Annual Report on Form 10-K)
4.1.2 Amendment to Certificate of Incorporation, filed April 11, 1985 with Office of Delaware
Secretary of State (incorporated by reference to 1984 Annual Report on Form 10-K)
4.1.3 Amendment to Certificate of Incorporation filed April 6, 1987 with Office of Delaware
Secretary of State (incorporated by reference to 1986 Annual Report on Form 10-K)
4.1.4 Amendment to Certificate of Incorporation filed October 17, 1990 with Office of
Delaware Secretary of State (incorporated by reference to Current Report on Form 8-K
filed October 31, 1990)
4.2 By-laws, as amended
4.3 Warrant Agreement, dated as of February 27, 1985, between Dennison Manufacturing
Company and First Chicago S.A., as Warrant Agent.
4.4 Supplemental Warrant Agreement, dated as of November 28, 1990, between Dennison
Manufacturing Company and First Chicago S.A., as Warrant Agent.
4.5 Rights Agreement dated as of June 30, 1988 (incorporated by reference to Exhibit 1 to
Avery Dennison's Current Report on Form 8-K filed July 9, 1988).
5 Opinion of Counsel to the Company re: legality.
23.1 Consent of Counsel to the Company (included in Exhibit 5).
23.2 Consent of Coopers & Lybrand L.L.P. (see Page II-5).
24 Power of Attorney (included in the signature page of this Registration Statement).
</TABLE>
II-1
<PAGE>
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high and of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" Table in the effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the registration statement is on Form S-3 or Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 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, 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.
(c) 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 Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Pasadena, State of California, on January 3, 1997.
AVERY DENNISON CORPORATION
By /s/ R. Gregory Jenkins
------------------------------
R. Gregory Jenkins
Senior Vice President, Finance
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated. Each person whose signature appears below hereby authorizes
Charles D. Miller, Philip M. Neal and R. Gregory Jenkins, or any of them, as
attorney-in-fact, with full power of substitution, to sign on his or her behalf,
individually and in each capacity stated below, and to file any amendments,
including post-effective amendments or supplements, to this Registration
Statement.
<TABLE>
<CAPTION>
Signatures TITLE DATE
---------- ----- ----
<S> <C> <C>
/s/ Charles D. Miller Chairman and Chief Executive January 3, 1997
- ----------------------------- Officer; Director
Charles D. Miller
/s/ Philip M. Neal President and Chief Operating January 3, 1997
- ----------------------------- Officer; Director
Philip M. Neal
/s/ R. Gregory Jenkins Senior Vice President, Finance and January 3, 1997
- ----------------------------- Chief Financial Officer (Principal
R. Gregory Jenkins Financial Officer)
/s/ Thomas E. Miller Vice President and Controller January 3, 1997
- ----------------------------- (Principal Accounting Officer)
Thomas E. Miller
/s/ Dwight L. Allison, Jr. Director January 3, 1997
- -----------------------------
Dwight L. Allison, Jr.
/s/ John C. Argue Director January 3, 1997
- -----------------------------
John C. Argue
</TABLE>
S-1
<PAGE>
<TABLE>
<CAPTION>
Signatures TITLE DATE
---------- ----- ----
<S> <C> <C>
/s/ Joan T. Bok Director January 3, 1997
- -----------------------------
Joan T. Bok
/s/ Frank V. Cahouet Director January 3, 1997
- -----------------------------
Frank V. Cahouet
/s/ Richard M. Ferry Director January 3, 1997
- -----------------------------
Richard M. Ferry
/s/ Peter W. Mullin Director January 3, 1997
- -----------------------------
Peter W. Mullin
/s/ Sidney R. Petersen Director January 3, 1997
- -----------------------------
Sidney R. Petersen
/s/ John B. Slaughter Director January 3, 1997
- -----------------------------
John B. Slaughter
</TABLE>
S-2
<PAGE>
EXHIBIT 4.2
BYLAWS
OF
AVERY DENNISON CORPORATION
ARTICLE I
---------
OFFICES
Section 1. Registered Office. The registered office of Avery Dennison
Corporation (hereinafter called the "corporation") in the State of Delaware
shall be at 1013 Centre Road, City of Wilmington, County of New Castle, and the
name of the registered agent at that address shall be United States Corporation
Company.
Section 2. Principal Office. The principal executive office for the
transaction of the business of the corporation is hereby fixed and located in
Los Angeles County, California. The board of directors is hereby granted full
power and authority to change said principal executive office from one location
to another within or without the State of California.
Section 3. Other Offices. The corporation may also have offices at such
other places within or without the State of Delaware as the board of directors
may from time to time determine, or the business of the corporation may require.
ARTICLE II
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STOCKHOLDERS
Section 1. Place of Meetings. Meetings of stockholders shall be held at
any place within or outside the State of Delaware designated by the board of
directors. In the absence of any such designation, stockholders' meetings shall
be held at the principal executive office of the corporation.
Section 2. Annual Meetings of Stockholders. The annual meeting of
stockholders shall be held on the last Thursday in April of each year at 1:30
p.m. of said day, or on such other day, which shall not be a legal holiday, as
shall be determined by the board of directors. Any previously scheduled annual
meeting of stockholders may be postponed by resolution of the board of directors
upon public notice given prior to the date previously scheduled for such annual
meeting of stockholders.
Section 3. Special Meetings. A special meeting of the stockholders may be
called at any time by the board of directors, or by a majority of the directors
or by a committee authorized by the board to do so. Any previously scheduled
special meeting of the stockholders may be postponed by resolution of the board
of directors upon public notice given prior to the date previously scheduled for
such special meeting of the stockholders.
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Section 4. Notice of Stockholders' Meetings. All notices of meetings of
stockholders shall be sent or otherwise given in accordance with Section 5 of
this Article II not less than ten (10) nor more than sixty (60) days before the
date of the meeting being noticed. The notice shall specify the place, date and
hour of the meeting and (i) in case of a special meeting, the general nature of
the business to be transacted, or (ii) in the case of the annual meeting, those
matters which the board of directors, at the time of giving the notice, intends
to present for action by the stockholders. The notice of any meeting at which
directors are to be elected shall include the name of any nominee or nominees
who, at the time of the notice, management intends to present for election.
Section 5. Manner of Giving Notice; Affidavit of Notice. Notice of any
meeting of stockholders shall be given either personally or by mail or
telegraphic or other written communication, charges prepaid, addressed to the
stockholder at the address of such stockholder appearing on the books of the
corporation or given by the stockholder to the corporation for the purpose of
notice. If no such address appears on the corporation's books or has been so
given, notice shall be deemed to have been given if sent by mail or telegraphic
or other written communication to the corporation's principal executive office,
or if published at least once in a newspaper of general circulation in the
county where such office is located. Notice shall be deemed to have been given
at the time when delivered personally or deposited in the mail or sent by
telegram or other means of written communication.
An affidavit of the mailing or other means of giving any notice of any
stockholders' meeting shall be executed by the secretary, assistant secretary or
any transfer agent of the corporation giving such notice, and shall be filed and
maintained in the minute book of the corporation.
Section 6. Quorum. The presence in person or by proxy of the holders of a
majority of the shares entitled to vote at any meeting of stockholders shall
constitute a quorum for the transaction of business. The stockholders present
at a duly called or held meeting at which a quorum is present may continue to do
business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum, if any action taken (other than
adjournment) is approved by at least a majority of the shares required to
constitute a quorum.
Section 7. Adjourned Meeting and Notice Thereof. Any stockholders'
meeting, annual or special, whether or not a quorum is present, may be adjourned
from time to time by the Chairman of the meeting, but in the absence of a
quorum, no other business may be transacted at such meeting, except as provided
in Section 6 of this Article II.
When any meeting of stockholders, either annual or special, is
adjourned to another time or place, notice need not be given of the adjourned
meeting if the time and place thereof are announced at a meeting at which the
adjournment is taken, unless a new record date for the adjourned meeting is
fixed, or unless the adjournment is for more than thirty (30) days from the date
set for the original meeting. Notice of any such adjourned meeting, if
required, shall be given to each stockholder of record entitled to vote at the
adjourned meeting in accordance with the provisions of Sections 4 and 5 of this
Article II. At any adjourned meeting the corporation may transact any business
which might have been transacted at the original meeting.
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Section 8. Voting. The stockholders entitled to vote at any meeting of
stockholders shall be determined in accordance with the provisions of Section 11
of this Article II. Such vote may be by voice vote or by ballot, at the
discretion of the Chairman of the meeting. Any stockholder entitled to vote on
any matter (other than the election of directors) may vote part of the shares in
favor of the proposal and refrain from voting the remaining shares or vote them
against the proposal; but, if the stockholder fails to specify the number of
shares such stockholder is voting affirmatively, it will be conclusively
presumed that the stockholder's approving vote is with respect to all shares
such stockholder is entitled to vote. If a quorum is present, the affirmative
vote of the majority of the shares represented at the meeting and entitled to
vote on any matter shall be the act of the stockholders, unless the vote of a
greater number or voting by classes is required by the Delaware General
Corporation Law or the certificate of incorporation or the certificate of
determination of preferences as to any preferred stock.
At a stockholders' meeting involving the election of directors, no
stockholder shall be entitled to cumulate (i.e., cast for any one or more
candidates a number of votes greater than the number of the stockholder's
shares). The candidates receiving the highest number of votes, up to the number
of directors to be elected, shall be elected.
Section 9. Waiver of Notice or Consent by Absent Stockholders. The
transactions of any meeting of stockholders, either annual or special, however
called and noticed, and wherever held, shall be as valid as though had at a
meeting duly held after regular call and notice, if a quorum be present either
in person or by proxy, and if, either before or after the meeting, each person
entitled to vote, not present in person or by proxy, signs a written waiver of
notice or a consent to the holding of the meeting, or an approval of the minutes
thereof. The waiver of notice or consent need not specify either the business
to be transacted or the purpose of any annual or special meeting of
stockholders. All such waivers, consents or approvals shall be filed with the
corporate records or made part of the minutes of the meeting.
Attendance of a person at a meeting shall also constitute a waiver of
notice of such meeting, except when the person objects, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
called or convened, and except that attendance at a meeting is not a waiver of
any right to object to the consideration of matters not included in the notice
of the meeting if such objection is expressly made at the meeting.
Section 10. No Stockholder Action by Written Consent Without a Meeting.
Stockholders may take action only at a regular or special meeting of
stockholders.
Section 11. Record Date for Stockholder Notice and Voting. For purposes
of determining the holders entitled to notice of any meeting or to vote, the
board of directors may fix, in advance, a record date, which shall not be more
than sixty (60) days nor less than ten (10) days prior to the date of any such
meeting, and in such case only stockholders of record on the date so fixed are
entitled to notice and to vote, notwithstanding any transfer of any shares on
the books of the corporation after the record date fixed as aforesaid, except as
otherwise provided in the Delaware General Corporation Law.
If the board of directors does not so fix a record date, the record
date for determining stockholders entitled to notice of or to vote at a meeting
of stockholders shall be at the close of business on the business day next
preceding the day on which notice is given or, if notice is waived, at the close
of business on the business day next preceding the day on which the meeting is
held.
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Section 12. Proxies. Every person entitled to vote for directors or on
any other matter shall have the right to do so either in person or by one or
more agents authorized by a written proxy signed by the person and filed with
the secretary of the corporation. A proxy shall be deemed signed if the
stockholder's name is placed on the proxy (whether by manual signature,
typewriting, telegraphic transmission or otherwise) by the stockholder or the
stockholder's attorney in fact. A validly executed proxy which does not state
that it is irrevocable shall continue in full force and effect unless (i)
revoked by the person executing it, prior to the vote pursuant thereto, by a
writing delivered to the corporation stating that the proxy is revoked or by a
subsequent proxy executed by, or attendance at the meeting and voting in person
by, the person executing the proxy, or (ii) written notice of the death or
incapacity of the maker of such proxy is received by the corporation before the
vote pursuant thereto is counted; provided, however, that no such proxy shall be
valid after the expiration of eleven (11) months from the date of such proxy,
unless otherwise provided in the proxy.
Section 13. Inspectors of Election; Opening and Closing the Polls. The
board of directors by resolution shall appoint one or more inspectors, which
inspector or inspectors may include individuals who serve the corporation in
other capacities, including, without limitation, as officers, employees, agents
or representatives, to act at the meetings of stockholders and make a written
report thereof. One or more persons may be designated as alternate inspectors
to replace any inspector who fails to act. If no inspector or alternate has
been appointed to act or is able to act at a meeting of stockholders, the
chairman of the meeting shall appoint one or more inspectors to act at the
meeting. Each inspector, before discharging his or her duties, shall take and
sign an oath faithfully to execute the duties of inspector with strict
impartiality and according to the best of his or her ability. The inspectors
shall have the duties prescribed by law.
The chairman of the meeting shall fix and announce at the meeting the
date and time of the opening and the closing of the polls for each matter upon
which the stockholders will vote at a meeting.
Section 14. Nomination and Stockholder Business Bylaw.
(A) Annual Meetings of Stockholders. (1) Nominations of persons for
election to the board of directors of the corporation and the proposal of
business to be considered by the stockholders may be made at an annual meeting
of stockholders (a) pursuant to the corporation's notice of meeting, (b) by or
at the direction of the board of directors or (c) by any stockholder of the
corporation who was a stockholder of record at the time of giving of notice
provided for in this Bylaw, who is entitled to vote at the meeting and who
complies with the notice procedures set forth in this Bylaw.
(2) For nominations or other business to be properly brought before
an annual meeting by a stockholder pursuant to clause (c) of paragraph (A) (1)
of this Bylaw, the stockholder must have given timely notice thereof in writing
to the secretary of the corporation and such other business must otherwise be a
proper matter for stockholder action. To be timely, a stockholder's notice
shall be delivered to the secretary at the principal executive offices of the
corporation not later than the close of business on the 60th day nor earlier
than the close of business on the 90th day prior to the first anniversary of the
preceding year's annual meeting; provided, however, that in the event that the
date of the annual meeting is more than 30 days before or more than 60 days
after such anniversary date, notice by the stockholder to be timely must be so
delivered not earlier than the close of business on the 90th day prior to such
annual meeting and not later than the close of business on the later of the 60th
day prior to such annual meeting or the 10th day
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following the day on which public announcement of the date of such meeting is
first made by the corporation. In no event shall the public announcement of an
adjournment of an annual meeting commence a new time period for the giving of a
stockholder's notice as described above. Such stockholder's notice shall set
forth (a) as to each person whom the stockholder proposes to nominate for
election or reelection as a director all information relating to such person
that is required to be disclosed in solicitations of proxies for election of
directors in an election contest, or is otherwise required, in each case
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended
(the "Exchange Act") and Rule 14a-11 thereunder (including such person's written
consent to being named in the proxy statement as a nominee and to serving as a
director if elected); (b) as to any other business that the stockholder proposes
to bring before the meeting, a brief description of the business desired to be
brought before the meeting, the reasons for conducting such business at the
meeting and any material interest in such business of such stockholder and the
beneficial owner, if any, on whose behalf the proposal is made; and (c) as to
the stockholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination or proposal is made (i) the name and address of such
stockholder, as they appear on the corporation's books, and of such beneficial
owner and (ii) the class and number of shares of the corporation which are owned
beneficially and of record by such stockholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of paragraph
(A)(2) of this Bylaw to the contrary, in the event that the number of directors
to be elected to the board of directors of the corporation is increased and
there is no public announcement by the corporation naming all of the nominees
for director or specifying the size of the increased board of directors at least
70 days prior to the first anniversary of the preceding year's annual meeting, a
stockholder's notice required by this Bylaw shall also be considered timely, but
only with respect to nominees for any new positions created by such increase, if
it shall be delivered to the secretary at the principal executive offices of the
corporation not later than the close of business on the 10th day following the
day on which such public announcement is first made by the corporation.
(B) Special Meetings of Stockholders. Only such business shall be
conducted at a special meeting of stockholders as shall have been brought before
the meeting pursuant to the corporation's notice of meeting. Nominations of
persons for election to the board of directors may be made at a special meeting
of stockholders at which directors are to be elected pursuant to the
corporation's notice of meeting (a) by or at the direction of the board of
directors or (b) provided that the board of directors has determined that
directors shall be elected at such meeting, by any stockholder of the
corporation who is a stockholder of record at the time of giving of notice
provided for in this Bylaw, who shall be entitled to vote at the meeting and who
complies with the notice procedures set forth in this Bylaw. In the event the
corporation calls a special meeting of stockholders for the purpose of electing
one or more directors to the board of directors, any such stockholder may
nominate a person or persons (as the case may be), for election to such
position(s) as specified in the corporation's notice of meeting, if the
stockholder's notice required by paragraph (A) (2) of this Bylaw shall be
delivered to the secretary at the principal executive offices of the corporation
not earlier than the close of business on the 90th day prior to such special
meeting and not later than the close of business on the later of the 60th day
prior to such special meeting or the 10th day following the day on which public
announcement is first made of the date of the special meeting and of the
nominees proposed by the board of directors to be elected at such meeting. In
no event shall the public announcement of an adjournment of a special meeting
commence a new time period for the giving of a stockholder's notice as described
above.
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(C) General. (1) Only such persons who are nominated in accordance with
the procedures set forth in this Bylaw shall be eligible to serve as directors
and only such business shall be conducted at a meeting of stockholders as shall
have been brought before the meeting in accordance with the procedures set forth
in this Bylaw. Except as otherwise provided by law, the Certificate of
Incorporation or these Bylaws, the chairman of the meeting shall have the power
and duty to determine whether a nomination or any business proposed to be
brought before the meeting was made or proposed, as the case may be, in
accordance with the procedures set forth in this Bylaw and, if any proposed
nomination or business is not in compliance with this Bylaw, to declare that
such defective proposal or nomination shall be disregarded.
(2) For purposes of this Bylaw, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or comparable national news service or in a document publicly filed by the
corporation with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Bylaw, a
stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in this Bylaw. Nothing in this Bylaw shall be deemed to affect any rights
(i) of stockholders to request inclusion of proposals in the corporation's proxy
statement pursuant to Rule 14a-8 under the Exchange Act or (ii) of the holders
of any series of Preferred Stock, if any, to elect directors under certain
circumstances.
ARTICLE III
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DIRECTORS
Section 1. Powers. Subject to the provisions of the Delaware General
Corporation Law and any limitations in the certificate of incorporation and
these bylaws relating to action required to be approved by the stockholders or
by the outstanding shares, the business and affairs of the corporation shall be
managed and all corporate powers shall be exercised by or under the direction of
the board of directors.
Without prejudice to such general powers, but subject to the same
limitations, it is hereby expressly declared that the directors shall have the
power and authority to:
(a) Select and remove all officers, agents and employees of the
corporation, prescribe such powers and duties for them as may not be
inconsistent with law, the certificate of incorporation or these bylaws,
fix their compensation, and require from them security for faithful
service.
(b) Change the principal executive office or the principal business
office in the State of California from one location to another; cause the
corporation to be qualified to do business in any other state, territory,
dependency, or foreign country and conduct business within or outside the
State of California; designate any place within or without the State of
California for the holding of any stockholders' meeting or meetings,
including annual meetings; adopt, make and use a corporate seal, and
prescribe the forms of certificates of stock, and alter the form of such
seal and of such certificates from time to time as in their judgment they
may deem best, provided that such forms shall at all times comply with the
provisions of law.
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(c) Authorize the issuance of shares of stock of the corporation
from time to time, upon such terms as may be lawful, in consideration of
money paid, labor done or services actually rendered, debts or securities
canceled or tangible or intangible property actually received.
(d) Borrow money and incur indebtedness for the purpose of the
corporation, and cause to be executed and delivered therefor, in the
corporate name, promissory notes, bonds, debentures, deeds of trust,
mortgages, pledges, hypothecations, or other evidences of debt and
securities therefor.
Section 2. Number and Qualification of Directors. The number of directors
of the corporation shall be ten (10) until changed by a bylaw amending this
Section 2, duly adopted by the board of directors or by the stockholders.
Section 3. Election and Term of Office of Directors. Subject to Section
15 below, one class of the directors shall be elected at each annual meeting of
the stockholders, but if any such annual meeting is not held or the directors
are not elected thereat, the directors may be elected at any special meeting of
stockholders held for that purpose. All directors shall hold office until their
respective successors are elected. Irrespective of the provisions of Section 15
of this Article III and of the preceding sentence, a director shall
automatically be retired on the date of the expiration of the first annual
meeting following his 72nd birthday.
Section 4. Vacancies. Vacancies in the board of directors may be filled
by a majority of the remaining directors, though less than a quorum, or by a
sole remaining director. Each director elected to fill a vacancy shall hold
office for the remainder of the term of the person whom he succeeds, and until a
successor has been elected and qualified.
A vacancy or vacancies in the board of directors shall be deemed to
exist in the case of the death, retirement, resignation or removal of any
director, or if the board of directors by resolution declares vacant the office
of a director who has been declared of unsound mind by an order of court or
convicted of a felony, or if the authorized number of directors be increased, or
if the stockholders fail at any meeting of stockholders at which any director or
directors are elected, to elect the full authorized number of directors to be
voted for at that meeting.
Any director may resign or voluntarily retire upon giving written
notice to the chairman of the board, the president, the secretary or the board
of directors. Such retirement or resignation shall be effective upon the giving
of the notice, unless the notice specifies a later time for its effectiveness.
If such retirement or resignation is effective at a future time, the board of
directors may elect a successor to take office when the retirement or
resignation becomes effective.
No reduction of the authorized number of directors shall have the
effect of removing any director prior to the expiration of his term of office.
No director may be removed during his term except for cause.
Section 5. Place of Meetings and Telephonic Meetings. Regular meetings of
the board of directors may be held at any place within or without the State of
Delaware that has been designated from time to time by resolution of the board.
In the absence of such designation, regular meetings shall be held
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at the principal executive office of the corporation. Special meetings of the
board shall be held at any place within or without the State of Delaware that
has been designated in the notice of the meeting or, if not stated in the notice
or there is no notice, at the principal executive office of the corporation.
Any meeting, regular or special, may be held by conference telephone or similar
communication equipment, so long as all directors participating in such meeting
can hear one another, and all such directors shall be deemed to be present in
person at such meeting.
Section 6. Annual Meetings. Immediately following each annual meeting of
stockholders, the board of directors shall hold a regular meeting for the
purpose of organization, any desired election of officers and transaction of
other business. Notice of this meeting shall not be required.
Section 7. Other Regular Meetings. Other regular meetings of the board of
directors shall be held at such time as shall from time to time be determined by
the board of directors. Such regular meetings may be held without notice
provided that notice of any change in the determination of time of such meeting
shall be sent to all of the directors. Notice of a change in the determination
of the time shall be given to each director in the same manner as for special
meetings of the board of directors.
Section 8. Special Meetings. Special meetings of the board of directors
for any purpose or purposes may be called at any time by the chairman of the
board or the president or any vice president or the secretary or any two
directors.
Notice of the time and place of special meetings shall be delivered
personally or by telephone to each director or sent by first-class mail or
telegram, charges prepaid, addressed to each director at his or her address as
it is shown upon the records of the corporation. In case such notice is mailed,
it shall be deposited in the United States mail at least four (4) days prior to
the time of the holding of the meeting. In case such notice is delivered
personally, or by telephone or telegram, it shall be delivered personally, or by
telephone or to the telegraph company at least forty-eight (48) hours prior to
the time of the holding of the meeting. Any oral notice given personally or by
telephone may be communicated to either the director or to a person at the
office of the director who the person giving the notice has reason to believe
will promptly communicate it to the director. The notice need not specify the
purpose of the meeting nor the place if the meeting is to be held at the
principal executive office of the corporation.
Section 9. Quorum. A majority of the authorized number of directors shall
constitute a quorum for the transaction of business, except to adjourn as
hereinafter provided. Every act or decision done or made by a majority of the
directors present at a meeting duly held at which a quorum is present shall be
regarded as the act of the board of directors. A meeting at which a quorum is
initially present may continue to transact business notwithstanding the
withdrawal of directors, if any action taken is approved by at least a majority
of the required quorum for such meeting.
Section 10. Waiver of Notice. The transactions of any meeting of the
board of directors, however called and noticed or wherever held, shall be as
valid as though had at a meeting duly held after regular call and notice if a
quorum be present and if, either before or after the meeting, each of the
directors not present signs a written waiver of notice, a consent to holding the
meeting or an approval of the minutes thereof. The waiver of notice or consent
need not specify the purpose of the meeting. All such waivers, consents and
approvals shall be filed with the corporate records or made a part of the
minutes of the meeting. Notice of a meeting shall also be deemed given to any
director who attends the meeting without protesting, prior thereto or at its
commencement, the lack of notice to such director.
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Section 11. Adjournment. A majority of the directors present, whether or
not constituting a quorum, may adjourn any meeting to another time and place.
Section 12. Notice of Adjournment. Notice of the time and place of an
adjourned meeting need not be given, unless the meeting is adjourned for more
than twenty-four (24) hours, in which case notice of such time and place shall
be given prior to the time of the adjourned meeting, in the manner specified in
Section 8 of this Article III, to the directors who were not present at the time
of the adjournment.
Section 13. Action Without Meeting. Any action required or permitted to
be taken by the board of directors may be taken without a meeting, if all
members of the board shall individually or collectively consent in writing to
such action. Such action by written consent shall have the same force and
effect as a unanimous vote of the board of directors. Such written consent or
consents shall be filed with the minutes of the proceedings of the board.
Section 14. Fees and Compensation of Directors. Directors and members of
committees may receive such compensation, if any, for their services and such
reimbursement of expenses, as may be fixed or determined by resolution of the
board of directors. Nothing herein contained shall be construed to preclude any
director from serving the corporation in any other capacity as an officer,
agent, employee, or otherwise, and receiving compensation for such services.
Section 15. Classification of Directors. The board of directors shall be
and is divided into three classes, Class I, Class II and Class III. The number
of directors in each class shall be the whole number contained in the quotient
arrived at by dividing the authorized number of directors by three, and if a
fraction is also contained in such quotient then if such fraction is one-third
(1/3) the extra director shall be a member of Class III and if the fraction is
two-thirds (2/3) one of the extra directors shall be a member of Class III and
the other shall be a member of Class II. Each director shall serve for a term
ending on the date of the third annual meeting following the annual meeting at
which such director was elected.
In the event of any increase or decrease in the authorized number of
directors, (a) each director then serving as such shall nevertheless continue as
a director of the class of which he is a member until the expiration of his
current term, or his prior death, resignation or removal, and (b) the newly
created or eliminated directorships resulting from such increase or decrease
shall be apportioned by the board of directors to such class or classes as
shall, so far as possible, bring the number of directors in the respective
classes into conformity with the formula in this Section 15, as applied to the
new authorized number of directors.
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ARTICLE IV
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COMMITTEES
Section 1. Committees of Directors. The board of directors may, by
resolution adopted by a majority of the authorized number of directors,
designate one or more committees, including an executive committee, each
consisting of two or more directors, to serve at the pleasure of the board. The
board may designate one or more directors as alternate members of any committee,
who may replace any absent member at any meeting of the committee. Any such
committee, to the extent provided in the resolution of the board, shall have all
the authority of the board, except with respect to:
(a) the approval of any action which, under the General Corporation
Law of Delaware, also requires stockholders' approval or approval of the
outstanding shares;
(b) the filling of vacancies on the board of directors or in any
committee;
(c) the fixing of compensation of the directors for serving on the
board or on any committee;
(d) the amendment or repeal of bylaws or the adoption of new
bylaws;
(e) the amendment or repeal of any resolution of the board of
directors which by its express terms is not so amendable or repealable;
(f) a distribution to the stockholders of the corporation, except
at a rate or in a periodic amount or within a price range determined by the
board of directors; or
(g) the appointment of any other committees of the board of
directors or the members thereof.
Section 2. Meetings and Action of Committees. Meetings and action of
committees shall be governed by, and held and taken in accordance with, the
provisions of Article III of these bylaws, Sections 5 (place of meetings), 7
(regular meetings), 8 (special meetings and notice), 9 (quorum), 10 (waiver of
notice), 11 (adjournment), 12 (notice of adjournment) and 13 (action without
meetings), with such changes in the context of those bylaws as are necessary to
substitute the committee and its members for the board of directors and its
members, except that the time of regular meetings of committees may be
determined by resolution of the board of directors as well as the committee,
special meetings of committees may also be called by resolution of the board of
directors, and notice of special meetings of committees shall also be given to
all alternate members, who shall have the right to attend all meetings of the
committee. The board of directors may adopt rules for the government of any
committee not inconsistent with the provisions of these bylaws.
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ARTICLE V
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OFFICERS
Section 1. Officers. The officers of the corporation shall be the
chairman of the board, the president, a vice president, a secretary and a
treasurer. The corporation may also have, at the discretion of the board of
directors, one or more additional vice presidents, one or more assistant
secretaries, one or more assistant treasurers, and such other officers as may be
appointed in accordance with the provisions of Section 3 of this Article V. Any
number of offices may be held by the same person.
Section 2. Election of Officers. The officers of the corporation, except
such officers as may be appointed in accordance with the provisions of Section 3
or Section 5 of this Article V, shall be chosen annually by the board of
directors, and each shall hold his office until he shall resign or be removed or
otherwise disqualified to serve or his successor shall be elected and qualified.
Section 3. Subordinate Officers, etc. The board of directors may appoint,
and may empower the chairman of the board to appoint, such other officers as the
business of the corporation may require, each of whom shall hold office for such
period, have such authority and perform such duties as are provided in the
bylaws or as the board of directors may from time to time determine.
Section 4. Removal and Resignation of Officers. Any officer may be
removed, either with or without cause, by the board of directors, at any regular
or special meeting thereof, or, except in case of an officer chosen by the board
of directors, by any officer upon whom such power of removal may be conferred by
the board of directors.
Any officer may resign at any time by giving written notice to the
corporation. Any such resignation shall take effect at the date of the receipt
of such notice or at any later time specified therein; and, unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
Section 5. Vacancies in Office. A vacancy in any office because of death,
resignation, removal, disqualification, or any other cause shall be filled in
the manner prescribed in these bylaws for regular appointments to such office.
Section 6. Chairman of the Board. The chairman of the board shall be the
chief executive officer of the corporation and shall, subject to the control of
the board of directors, have general supervision, direction and control of the
business and affairs of the corporation.
Section 7. President. The president shall be the chief operating officer
of the corporation and shall exercise and perform such powers and duties with
respect to the administration of the business and affairs of the corporation as
may from time to time be assigned to him by the chairman of the board or by the
board of directors, or as may be prescribed by the bylaws.
Section 8. Vice Presidents. In the absence or disability of the
president, a vice president designated by the board of directors shall perform
all the duties of the president, and when so acting shall have all the powers
of, and be subject to all the restrictions upon, the president. The vice
presidents shall
11
<PAGE>
have such other powers and perform such other duties as from time to time may be
prescribed for them respectively by the board of directors or the bylaws.
Section 9. Secretary. The secretary shall keep or cause to be kept, at
the principal executive office or such other place as the board of directors may
order, a book of minutes of all meetings and actions of directors, committees of
directors and stockholders, with the time and place of holding, whether regular
or special, and, if special, how authorized, the notice thereof given, the names
of those present at directors' and committee meetings, the number of shares
present or represented at stockholders' meetings, and the proceedings thereof.
The secretary shall keep, or cause to be kept, at the principal
executive office or at the office of the corporation's transfer agent or
registrar, as determined by resolution of the board of directors, a stock
register, or a duplicate register, showing the names of all stockholders and
their addresses, the number and classes of shares held by each, the number and
date of certificates issued for the same, and the number and date of
cancellation of every certificate surrendered for cancellation.
The secretary shall give, or cause to be given, notice of all meetings
of the stockholders and of the board of directors required by the bylaws or by
law to be given, and he shall keep the seal of the corporation in safe custody,
and shall have such other powers and perform such other duties as may be
prescribed by the board of directors or by the bylaws.
Section 10. Treasurer. The treasurer shall keep and maintain, or cause to
be kept and maintained, adequate and correct books and records of accounts of
the properties and business transactions of the corporation, including accounts
of its assets, liabilities, receipts, disbursements, gains, losses, capital,
retained earnings and shares. The books of account shall be open at all
reasonable times to inspection by any director.
The treasurer shall deposit all monies and other valuables in the name
and to the credit of the corporation with such depositories as may be designated
by the board of directors. He shall disburse the funds of the corporation as
may be ordered by the board of directors, shall render to the chairman of the
board and directors, whenever they request it, an account of all of his
transactions as treasurer and of the financial condition of the corporation, and
shall have other powers and perform such other duties as may be prescribed by
the board of directors or the bylaws.
Section 11. Assistant Secretaries and Assistant Treasurers. Any assistant
secretary may perform any act within the power of the secretary, and any
assistant treasurer may perform any act within the power of the treasurer,
subject to any limitations which may be imposed in these bylaws or in board
resolutions.
ARTICLE VI
----------
INDEMNIFICATION OF DIRECTORS, OFFICERS,
EMPLOYEES AND OTHER AGENTS
Section 1. Indemnification. The corporation shall indemnify, in the
manner and to the full extent permitted by law, any person (or the estate of any
person) who was or is a party to, or is threatened to be made a party to, any
threatened, pending or completed action, suit or proceeding, whether or not by
or in the right of the corporation, and whether civil, criminal, administrative,
investigative or otherwise, by reason of
12
<PAGE>
the fact that such person is a director or officer of the corporation, and at
the discretion of the board of directors may indemnify any person (or the estate
of any person) who is such a party or threatened to be made such a party by
reason of the fact that such person is or was an employee or agent of the
corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise. Unless otherwise permitted by law, the
indemnification provided for herein shall be made only as authorized in the
specific case upon a determination, in the manner provided by law, that
indemnification of the director, officer, employee or agent is proper in the
circumstances. The corporation may, to the full extent permitted by law,
purchase and maintain insurance on behalf of any such person against any
liability which may be asserted against him. To the full extent permitted by
law, the indemnification provided herein shall include expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement, and, in the
manner provided by law, any such expenses may be paid by the corporation in
advance of the final disposition of such action, suit or proceeding. The
indemnification provided herein shall not be deemed to limit the right of the
corporation to indemnify any other person for any such expenses to the full
extent permitted by law, nor shall it be deemed exclusive of any other rights to
which any person seeking indemnification from the corporation may be entitled
under any agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office.
Section 2. Fiduciaries of Corporate Employee Benefit Plan. This Article
VI does not apply to any proceeding against any trustee, investment manager or
other fiduciary of an employee benefit plan in such person's capacity as such,
even though such person may also be an agent of the corporation as defined in
Section 1 of this Article VI. Nothing contained in this Article VI shall limit
any right to indemnification to which such a trustee, investment manager or
other fiduciary may be entitled by contract or otherwise, which shall be
enforceable to the extent permitted by Section 410 of the Employee Retirement
Income Security Act of 1974, as amended, other than this Article VI.
ARTICLE VII
-----------
RECORDS AND REPORTS
Section 1. Maintenance and Inspection of Stock Register. The corporation
shall keep at its principal executive office, or at the office of its transfer
agent or registrar, if either be appointed, and as determined by resolution of
the board of directors, a record of its stockholders, giving the names and
addresses of all stockholders and the number and class of shares held by each
stockholder.
A stockholder or stockholders of the corporation holding at least five
percent (5%) in the aggregate of the outstanding voting shares of the
corporation may (i) inspect and copy the records of stockholders' names and
addresses and stockholders during usual business hours upon five days prior
written demand upon the corporation, and/or (ii) obtain from the transfer agent
of the corporation, upon written demand and upon the tender of such transfer
agent's usual charges for such list, a list of the stockholders' names and
addresses, who are entitled to vote for the election of directors, and their
shareholdings as of the most recent record date for which such list has been
compiled or as of a date specified by the stockholder subsequent to the date of
demand. Such list shall be made available to such stockholder or stockholders
by the transfer agent on or before the later of five (5) days after the demand
is received or the date specified therein as the date as of which the list is to
be compiled.
13
<PAGE>
The record of stockholders shall be open to inspection upon the
written demand of any stockholder or holder of a voting trust certificate, at
any time during usual business hours, for a purpose reasonably related to such
holder's interests as a stockholder or as the holder of a voting trust
certificate. Any inspection and copying under this Section 1 may be made in
person or by an agent or attorney of the stockholder or holder of a voting trust
certificate making such demand.
Section 2. Maintenance and Inspection of Bylaws. The corporation shall
keep at its principal executive office the original or a copy of the bylaws as
amended to date, which shall be open to inspection by the stockholders at all
reasonable times during office hours.
Section 3. Maintenance and Inspection of Other Corporate Records. The
accounting books and records and minutes of proceedings of the stockholders and
the board of directors and any committee or committees of the board of directors
shall be kept at such place or places designated by the board of directors, or,
in the absence of such designation, at the principal executive office of the
corporation. The minutes shall be kept in written form and the accounting books
and records shall be kept either in written form or in any other form capable of
being converted into written form. Such minutes and accounting books and
records shall be open to inspection upon the written demand of any stockholder
or holder of a voting trust certificate, at any reasonable time during usual
business hours, for a purpose reasonably related to such holder's interests as a
stockholder or as a holder of a voting trust certificate. Such inspection may
be made in person or by an agent or attorney, and shall include the right to
copy and make extracts. The foregoing rights of inspection shall extend to the
records of each subsidiary corporation of the corporation.
Section 4. Inspection by Directors. Every director shall have the
absolute right at any reasonable time to inspect all books, records and
documents of every kind and the physical properties of the corporation and each
of its subsidiary corporations. Such inspection by a director may be made in
person or by agent or attorney and the right of inspection includes the right to
copy and make extracts.
Section 5. Annual Report to Stockholders. The board of directors shall
cause an annual report to be sent to the stockholders not later than one hundred
twenty (120) days after the close of the fiscal year adopted by the corporation.
Such report shall be sent at least fifteen (15) days prior to the annual meeting
of stockholders to be held during the next fiscal year and in the manner
specified in Section 5 of Article II of these bylaws for giving notice to
stockholders of the corporation. The annual report shall contain a balance
sheet and statement of changes in financial position for such fiscal year,
accompanied by any report thereon of independent accountants.
Section 6. Financial Statements. A copy of any annual financial statement
and any income statement of the corporation for each quarterly period of each
fiscal year, and any accompanying balance sheet for the corporation as of the
end of each such period, that has been prepared by the corporation shall be kept
on file in the principal executive office of the corporation for twelve (12)
months and each such statement shall be exhibited at all reasonable times to any
stockholder demanding an examination of any such statement or a copy shall be
mailed to any such stockholder.
If a stockholder or stockholders holding at least five percent (5%) of
the outstanding shares of any class of stock of the corporation make a written
request to the corporation for an income statement of the corporation for the
three-month, six-month or nine-month period of the current fiscal year ended
more than thirty (30) days prior to the date of the request, and a balance sheet
of the corporation as of the end of such period, the treasurer shall cause such
statement to be prepared, if not already prepared, and
14
<PAGE>
shall deliver personally or mail such statement or statements to the person
making the request within thirty (30) days after the receipt of such request. If
the corporation has not sent to the stockholders its annual report for the last
fiscal year, this report shall likewise be delivered or mailed to such
stockholder or stockholders within thirty (30) days after such request.
The corporation also shall, upon the written request of any
stockholder, mail to the stockholder a copy of the last annual, semi-annual or
quarterly income statement which it has prepared and a balance sheet as of the
end of such period.
The quarterly income statements and balance sheets referred to in this
section shall be accompanied by the report thereon, if any, of any independent
accountants engaged by the corporation, or the certificate of an authorized
officer of the corporation that such financial statements were prepared without
audit from the books and records of the corporation.
ARTICLE VIII
------------
GENERAL CORPORATE MATTERS
Section 1. Record Date for Purposes Other Than Notice and Voting. For
purposes of determining the stockholders entitled to receive payment of any
dividend or other distribution or allotment of any rights or entitled to
exercise any rights in respect of any other lawful action, the board of
directors may fix, in advance, a record date, which shall not be more than sixty
(60) days prior to any such action, and in such case only stockholders of record
on the date so fixed are entitled to receive the dividend, distribution or
allotment of rights or to exercise the rights, as the case may be,
notwithstanding any transfer of any shares on the books of the corporation after
the record date fixed as aforesaid, except as otherwise provided in the Delaware
General Corporation Law.
If the board of directors does not so fix a record date, the record
date for determining stockholders for any such purpose shall be at the close of
business on the day on which the board adopts the resolution relating thereto,
or the sixtieth (60th) day prior to the date of such action, whichever is later.
Section 2. Checks, Drafts, Evidences of Indebtedness. All checks, drafts
or other orders for payment of money, notes or other evidences of indebtedness,
issued in the name of or payable to the corporation shall be signed or endorsed
by such person or persons and in such manner as, from time to time, shall be
determined by resolution of the board of directors.
Section 3. Corporate Contracts and Instruments; How Executed. The board
of directors, except as otherwise provided in these bylaws, may authorize any
officer or officers, agent or agents, to enter into any contract or execute any
instrument in the name of and on behalf of the corporation, and such authority
may be general or confined to specific instances; and, unless so authorized or
ratified by the board of directors or within the agency power of an officer, no
officer, agent or employee shall have any power or authority to bind the
corporation by any contract or engagement or to pledge its credit or to render
it liable for any purpose or to any amount.
15
<PAGE>
Section 4. Stock Certificates. A certificate or certificates for shares
of the capital stock of the corporation shall be issued to each stockholder when
any such shares are fully paid. All certificates shall be signed in the name of
the corporation by the chairman of the board or the president or vice president
and by the treasurer or an assistant treasurer or the secretary or any assistant
secretary, certifying the number of shares and the class or series of shares
owned by the stockholder. Any or all of the signatures on the certificate may
be facsimile. In case any officer, transfer agent or registrar who has signed
or whose facsimile signature has been placed upon a certificate shall have
ceased to be such officer, transfer agent or registrar before such certificate
is issued, it may be issued by the corporation with the same effect as if such
person were an officer, transfer agent or registrar at the date of issue.
Section 5. Lost Certificates. Except as hereinafter in this Section 5
provided, no new stock certificate shall be issued in lieu of an old certificate
unless the latter is surrendered to the corporation and canceled at the same
time. The board of directors may in case any stock certificate or certificate
for any other security is lost, stolen or destroyed, authorize the issuance of a
new certificate in lieu thereof, upon such terms and conditions as the board of
directors may require, including provision for indemnification of the
corporation secured by a bond or other adequate security sufficient to protect
the corporation against any claim that may be made against it, including any
expense or liability, on account of the alleged loss, theft or destruction of
such certificate or the issuance of such new certificate.
Section 6. Representation of Stock of Other Corporations. The chairman of
the board, the president, or any vice president, or any other person authorized
by resolution of the board of directors by any of the foregoing designated
officers, is authorized to vote on behalf of the corporation any and all stock
of any other corporation or corporations, foreign or domestic, standing in the
name of the corporation. The authority herein granted to said officers to vote
or represent on behalf of the corporation any and all stock by the corporation
in any other corporation or corporations may be exercised by any such officer in
person or by any person authorized to do so by proxy duly executed by said
officer.
Section 7. Construction and Definitions. Unless the context requires
otherwise, the general provisions, rules of construction, and definitions in the
Delaware General Corporation Law shall govern the construction of the bylaws.
Without limiting the generality of the foregoing, the singular number includes
the plural, the plural number includes the singular, and the term "person"
includes both a corporation and a natural person.
Section 8. Fiscal Year. The fiscal year of the corporation shall commence
the first day of the calendar year.
Section 9. Seal. The seal of the corporation shall be round and shall
bear the name of the corporation and words and figures denoting its organization
under the laws of the State of Delaware and year thereof, and otherwise shall be
in such form as shall be approved from time to time by the board of directors.
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<PAGE>
ARTICLE IX
----------
AMENDMENTS
Section 1. Amendment by Stockholders. New bylaws may be adopted or these
bylaws may be amended or repealed by the vote of not less than 80% of the total
voting power of all shares of stock of the corporation entitled to vote in the
election of directors, considered for purposes of this Section 1 as one class.
Section 2. Amendment by Directors. Subject to the rights of the
stockholders as provided in Section 1 of this Article IX, to adopt, amend or
repeal bylaws, bylaws may be adopted, amended or repealed by the board of
directors.
As Amended 12/05/96
17
<PAGE>
EXHIBIT 4.3
- -------------------------------------------------------------------------------
DENNISON MANUFACTURING COMPANY
AND
FIRST CHICAGO S.A.
Warrant Agent
_________________________________
WARRANT AGREEMENT
Dated as of February 27, 1985
_________________________________
Common Stock Purchase Warrants
Expiring February 21, 1997
- -------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
SECTION 1. Appointment of Warrant Agent.................................... 2
SECTION 2. Number of Warrants.............................................. 2
SECTION 3. Form of Warrant Certificates.................................... 2
SECTION 4. Execution of Warrant Certificates............................... 2
SECTION 5. Bearer Form..................................................... 2
SECTION 6. Warrant Agent Offices; Exchanges................................ 3
SECTION 7. No Separate Transfers until Unit Separation Date................ 3
SECTION 8. Duration and Exercise of Warrants............................... 3
SECTION 9. Acquisition of Warrants by the Company; Cancellation
of Warrants..................................................... 4
SECTION 10. Payment of Taxes................................................ 5
SECTION 11. Mutilated or Missing Warrant Certificates....................... 5
SECTION 12. Reservation of Shares........................................... 5
SECTION 13. Obtaining of Governmental Approvals; Stock Exchange Listing..... 6
SECTION 14. Adjustment of Exercise Price and Number of Shares Purchasable... 6
SECTION 15. Fractional Shares............................................... 11
SECTION 16. Rights Upon Consolidation, Merger, Sale, Transfer or
Reclassification................................................ 11
SECTION 17. Merger, Consolidation or Change of Name of Warrant Agent........ 12
SECTION 18. Warrant Agent................................................... 12
SECTION 19. Change of Warrant Agent......................................... 14
SECTION 20. Warrantholder Not Deemed a Shareholder.......................... 15
</TABLE>
-i-
<PAGE>
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
SECTION 21. Notices to Company and Warrant Agent............................. 15
SECTION 22. Supplements and Amendments...................................... 16
SECTION 23. Successors...................................................... 16
SECTION 24. Termination..................................................... 16
SECTION 25. Governing Law................................................... 16
SECTION 26. Jurisdiction.................................................... 16
SECTION 27. Benefits of this Agreement...................................... 17
SECTION 28. Counterparts.................................................... 17
SECTION 29. Table of Contents; Headings..................................... 17
</TABLE>
Exhibit A
Exhibit B
Annex I
-ii-
<PAGE>
WARRANT AGREEMENT, dated as of February 27, 1985, between Dennison
Manufacturing Company, a Nevada corporation (the "Company"), and First Chicago
S.A., a company limited by shares incorporated under the laws of Switzerland, as
Warrant Agent (the "Warrant Agent," which term includes any successor appointed
pursuant hereto).
WHEREAS, pursuant to a Bond and Warrant Issue Agreement dated February
27, 1985 (the "Issue Agreement") between the Company and First Chicago S.A. and
other members of a banking consortium (the "Consortium"), the Consortium has
agreed to purchase for offering in Switzerland Units (the "Units") consisting of
(a) an aggregate of Swiss francs 100,000,000 principal amount of the Company's 5
1/8% Bonds 1985 - 1997 (the "Bonds"), and (b) 200,000 Warrants (the "Warrants")
to purchase an aggregate of 1,000,000 shares of the Company's Common Stock $1.00
par value per share (such shares being hereinafter referred to as the "Shares"
and, where appropriate, also including the other securities or property
purchasable upon the exercise of the Warrants upon the happening of certain
events as provided for herein, and subject to paragraph (j) of Section 14, such
class of Common Stock being hereinafter referred to as the "Common Stock"), each
of which Warrants initially entitles the holder thereof to purchase five Shares
of Common Stock;
WHEREAS, each Unit consists either of (a) a Swiss francs 5,000
principal amount Bond and 10 Warrants entitling the holder thereof to purchase
50 Shares of Common Stock or (b) a Swiss francs 100,000 principal amount Bond
and 200 Warrants entitling the holder thereof to purchase 1,000 Shares of Common
Stock;
WHEREAS, as provided in the Issue Agreement, the Warrants shall
initially be evidenced by a global Warrant Certificate (as the term "Warrant
Certificate" is hereinafter defined) to be held by First Chicago S.A. in
exchange for which definitive Warrant Certificates are to be issued as so
provided;
WHEREAS, the Bonds and Warrants constituting the Units shall not be
separately transferable until June 24, 1985, such date being ninety-five days
from the date of issue pursuant to the Issue Agreement of the global Bond and
global Warrant Certificate (the "Unit Separation Date"); thereafter the Bonds
and Warrants may be transferred separately;
<PAGE>
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing so to act, in connection with the
issuance of Warrants, the exercise thereof and other matters as provided herein;
WHEREAS, all acts and things necessary to make this Warrant Agreement
a valid agreement according to its terms have been done and performed;
NOW, THEREFORE, in consideration of the purchase of the Warrants by
the holders thereof and the mutual agreements contained herein, the Company
covenants and agrees with the Warrant Agent for the equal and proportionate
benefit of the respective holders from time to time of the Warrants as follows:
SECTION 1. Appointment of Warrant Agent. The Company hereby appoints
-----------------------------
the Warrant Agent to act as agent for the Company in accordance with the
instructions hereinafter in this Agreement set forth, and the Warrant Agent
hereby accepts such appointment, upon the terms and conditions hereinafter set
forth.
SECTION 2. Number of Warrants. The number of warrants which may be
------------------
issued and delivered under this Warrant Agreement is limited to 200,000.
SECTION 3. Form of Warrant Certificates. The certificates
----------------------------
evidencing the Warrants (the "Warrant Certificates") to be delivered pursuant to
this Agreement shall be in bearer form only. The Warrant Certificates shall be
in substantially the respective forms set forth in Exhibit A attached hereto in
the case of the global Warrant Certificate referred to in the recitals hereto
and in Exhibit B hereto in the case of the definitive Warrant Certificates, with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Agreement, and may have such letters, numbers
or other marks of identification and such legends or endorsements placed thereon
as may be required to comply with any law or with any rules made pursuant
thereto or with any rules of any securities exchange or as may, consistent
herewith, be determined by the officers executing such Warrants, as evidenced by
their execution of the Warrants. Definitive Warrant Certificates shall be
issued in such denominations representing such numbers of Warrants (hereinafter
"authorized denominations") as shall be mutually agreed upon by the Warrant
Agent and the Company.
-2-
<PAGE>
SECTION 4. Execution of Warrant Certificates. Warrant Certificates
---------------------------------
shall be executed on behalf of the Company by any director and any authorized
officer of the Company. Each such signature upon the Warrant Certificates may
be in the form of a facsimile signature of the present or any future director or
authorized officer and may be imprinted or otherwise reproduced on the Warrant
Certificates and for that purpose the Company may adopt and use the facsimile
signature of any person who shall have been a director or authorized officer,
notwithstanding the fact that at the time the Warrant Certificates shall be
countersigned and delivered or disposed of he shall have ceased to hold such
office.
In case any director or authorized officer of the Company who shall
have signed any of the Warrant Certificates shall cease to be such director or
authorized officer before the Warrant Certificates so signed shall have been
countersigned by the Warrant Agent or disposed of by the Company such Warrant
Certificates nevertheless may be countersigned and delivered or disposed of as
though such person had not ceased to be such director or authorized officer of
the Company; and any Warrant Certificate may be signed on behalf of the Company
by any person who, at the actual date of the execution of such Warrant
Certificate, shall be a proper director or authorized officer of the Company to
sign such Warrant Certificate, although at the date of the execution of this
Warrant Agreement any such person was not such director or authorized officer.
SECTION 5. Bearer Form. Each taker and holder of a Warrant
-----------
Certificate, by taking or holding the same, consents and agrees that such
Warrant Certificate shall be deemed negotiable and the holder hereof treated by
the Company, the Warrant Agent and all other persons dealing with such Warrant
Certificate as the absolute owner thereof for any purposes and as the person
entitled to exercise the rights represented by such Warrant Certificate, any
notice to the contrary notwithstanding.
SECTION 6. Warrant Agent Offices; Exchanges. The Warrant Agent shall
--------------------------------
at all times maintain an office in Geneva, Switzerland (the "Warrant Agent
Office") where Warrant Certificates may be exchanged, Warrants exercised,
Warrant Certificates issued and other responsibilities and functions of the
Warrant Agent hereunder performed.
-3-
<PAGE>
Warrant Certificates may be exchanged at the option of the holder or
holders thereof, when surrendered to the Warrant Agent at the Warrant Agent
Office, for another Warrant Certificate or other Warrant Certificates of like
tenor and of authorized denominations representing in the aggregate a like
number of Warrants. Warrant Certificates may also be presented for such
exchange, when surrendered at any of the offices in Switzerland (each a "Paying
Agent Office") of any of the paying agents in respect of the Bonds (each a "Bond
Paying Agent") (except that if the Bonds shall have been redeemed, such Warrant
Certificates may only be presented for exchange at any of the offices in
Switzerland of the Principal Paying Agent) for forwarding to, or upon the
direction of, the Warrant Agent for processing. The Warrant Agent is hereby
authorized to deliver the new Warrant Certificates required pursuant to the
provisions of this Section.
SECTION 7. No Separate Transfers until Unit Separation Date. As
------------------------------------------------
provided in the recitals hereto, until the Unit Separation Date Warrants are
transferrable only as components of Units being transferred comprising Bonds and
Warrants. To that end, prior to the Unit Separation Date, neither the Company
nor the Warrant Agent shall extend to the holder of any Warrant Certificate
rights provided for herein with respect to the exchange of such Warrant
Certificate or exercise of Warrants evidenced thereby or other rights with
respect thereto unless such holder at the time holds a Bond in the principal
amount of Swiss francs 5,000 for each 10 Warrants or a Bond in the principal
amount of Swiss francs 100,000 for each 200 Warrants evidenced by such Warrant
Certificate.
SECTION 8. Duration and Exercise of Warrants. The Warrants shall
---------------------------------
expire on the close of business on February 21, 1997 (such date of expiration
being herein referred to as the "Expiration Date"). Each Warrant may be
exercised on any business day on or after June 24, 1985 and prior to 5:00 p.m.,
Geneva time, on the Expiration Date. After 5:00 p.m., Geneva time, on the
Expiration Date, the Warrants will become wholly void and of no value. As used
herein, the term "business day" means a day on which banks generally are open
for business in Zurich, Basle, Geneva and Berne, Switzerland.
Subject to the provisions of this Agreement, each Warrant shall
entitle the holder thereof to purchase from the Company (and the Company shall
issue and sell to such
-4-
<PAGE>
holder of a Warrant) five fully paid and nonassessable Shares (or such number of
Shares as may be adjusted from time to time as provided in Section 14) at the
price of Swiss francs 101.73 per share (such price, as may be adjusted from time
to time as provided in Section 14, being the "Exercise Price") upon depositing
the Warrant Certificate or Certificates evidencing such Warrant or Warrants with
the Warrant Agent at the Warrant Agent Office with the form of election to
purchase on the reverse thereof duly completed and signed by or on behalf of the
holder or holders thereof, and upon payment (in cash or by bank check) of the
aggregate Exercise Price, plus the amount of any Swiss turnover, stamp or other
Swiss tax applicable to the issue of Common Stock upon such exercise, in lawful
money of the Confederation of Switzerland for the number of Shares in respect of
which such Warrant Certificate or Certificates is being exercised. The Warrants
may also be presented for exercise, with the same effect as if surrendered to
the Warrant Agent, by (i) depositing such Warrant Certificate or Certificates
with any Bond Paying Agent at any Paying Agent Office (except that if the Bonds
shall have been redeemed, such Warrant Certificate or Certificates may only be
presented for exercise at any of the offices in Switzerland of the Principal
Paying Agent), for forwarding to or upon the direction of, the Warrant Agent for
processing and (ii) providing for the payment of the aggregate Exercise Price
plus the amount with respect to any applicable Swiss taxes (in cash or by bank
check) at the Warrant Agent Office.
Upon such surrender of a Warrant Certificate or Certificates and
payment of the Exercise Price and the amount with respect to taxes as aforesaid
the Warrant Agent shall requisition from the Company's Common Stock transfer
agent or co-transfer agent (the "Transfer Agent") for issuance and delivery to
or upon the written order of the holder of such Warrant Certificate or
Certificates and in such name or names as such holder may designate (all as
specified in the election to purchase provided by such holder at the time of
exercise), a certificate or certificates for the Shares issuable upon the
exercise of the Warrant or Warrants evidenced by such Warrant Certificate or
Certificates. Such certificate or certificates shall be deemed to have been
issued and any person so designated to be named therein shall be deemed to have
become the holder of record of such Share or Shares as of the date of the
surrender of such Warrant Certificate or Certificates duly executed and payment
of the Exercise Price as hereinbefore provided. The Warrants evidenced by a
Warrant Certificate or Certificates
-5-
<PAGE>
shall be exercisable, at the election of the holder thereof, either as an
entirety or from time to time for part only of the number of Warrants specified
in the Warrant Certificate or Certificates. In the event that less than all of
the Warrants evidenced by a Warrant Certificate or Certificates surrendered upon
the exercise of Warrants are exercised at any time prior to the Expiration Date,
a new Warrant Certificate or Certificates shall be issued in authorized
denominations for the remaining number of Warrants evidenced by the Warrant
Certificate or Certificates so surrendered.
The Warrant Agent shall account promptly to the Company with respect
to Warrants exercised and concurrently pay to the Company all moneys received by
it (other than amounts received on account of applicable Swiss taxes) on the
purchase of Shares through the exercise of Warrants.
SECTION 9. Acquisition of Warrants by the Company; Cancellation of
-------------------------------------------------------
Warrants. The Company shall have the right, except as limited by law or other
- --------
agreement, to purchase or otherwise acquire Warrants at such times, in such
manner and for such consideration as it may deem appropriate. The Warrant Agent
shall cancel any Warrant Certificate delivered to it for exercise in whole or in
part, or delivered to it for exchange or substitution, and no Warrant
Certificates shall be issued in lieu thereof except as expressly permitted by
any of the provisions of this Agreement. On request of the Company, the Warrant
Agent shall destroy cancelled Warrant Certificates held by it and shall deliver
its certificates of destruction to the Company. If the Company shall acquire any
of the Warrants, such acquisition shall not operate as a redemption or
termination of the right represented by such Warrants unless and until the
Warrant Certificates evidencing such Warrants are surrendered to the Warrant
Agent for cancellation.
SECTION 10. Payment of Taxes. The Company will pay all documentary
----------------
stamp taxes attributable to the exercise of Warrants except as provided in
Section 8.
SECTION 11. Mutilated or Missing Warrant Certificates. In case any
-----------------------------------------
of the Warrant Certificates shall be mutilated, lost, stolen or destroyed, the
Company may in its discretion issue, and the Warrant Agent shall deliver, in
exchange and substitution for and upon cancellation of the mutilated Warrant
Certificate or Certificates, or in lieu of and substitution for the Warrant
Certificate or Certificates lost, stolen or destroyed, a new Warrant Certificate
or
-6-
<PAGE>
certificates of like tenor and of authorized denominations representing an
equivalent number of Warrants, but only upon receipt of evidence satisfactory to
the Company and the Warrant Agent of such loss, theft or destruction of such
warrant Certificate or Certificates (and surrender of any mutilated Warrant
Certificate or Certificates, if applicable) and indemnity or bond, if requested,
also satisfactory to them. Applicants for such substitute Warrant Certificates
shall also comply with such other reasonable regulations and pay such other
reasonable charges as the Company or the Warrant Agent may prescribe.
SECTION 12. Reservation of Shares. For the purpose of enabling it to
---------------------
satisfy any obligation to issue Shares upon exercise of Warrants, the Company
will at all times through the close of business on the Expiration Date, reserve
and keep available, from preemptive rights and out of its aggregate authorized
but unissued or treasury Common Stock, the full number of Shares deliverable
upon the exercise of all outstanding Warrants, and the Transfer Agent is hereby
irrevocably authorized and directed by the Company at all times to honor
requisitions made by the Warrant Agent pursuant to Section 8 hereof. The Company
will keep a copy of this Agreement on file with such Transfer Agent and with
every transfer agent for any shares of the Company's capital stock issuable upon
the exercise of Warrants pursuant to Section 14. The Warrant Agent is hereby
irrevocably authorized to requisition from time to time from such Transfer Agent
stock certificates issuable upon exercise of outstanding Warrants, and the
Company will supply such Transfer Agent with duly executed stock certificates
for such purpose.
Before taking any action which would cause an adjustment pursuant to
Section 14 reducing the Exercise Price below the then par value (if any) of the
Shares issuable upon exercise of the Warrants, the Company will take any
corporate action which may, in the opinion of its counsel, be necessary in order
that the Company may validly and legally issue fully paid and nonassessable
Shares at the Exercise Price as so adjusted.
The Company covenants that all Shares issued upon exercise of the
Warrants will, upon issuance in accordance with the terms of this Agreement, be
fully paid and nonassessable and free from all prescriptive rights and taxes,
liens, charges and security interests created by or imposed
-7-
<PAGE>
upon the Company with respect to the issuance and holding thereof.
SECTION 13. Obtaining of Governmental Approvals; Stock Exchange
---------------------------------------------------
Listing. The Company from time to time will use its best efforts to obtain and
- -------
keep effective any and all permits, consents and approvals of governmental
agencies and authorities and to make filings under United States federal and
state securities acts and laws and the laws of Switzerland, which may be or
become requisite in connection with the issuance, sale, transfer and delivery of
the Warrant Certificates, the exercise of the Warrants and the issuance, sale,
transfer and delivery of the Shares issued upon exercise of the Warrants. The
Company will cause all Shares to be and remain duly listed (subject to issuance
or notice thereof) on all securities exchanges on which the Common Stock is
listed. The Company will cause the Shares to be duly registered under the United
States Federal Securities Act of 1933, as amended, prior to June 24, 1985, the
first date on which Warrants may be exercised, and to maintain the due
effectiveness of such registration statement so long as such registration of the
Shares is required by such Act or regulations thereunder and to supplement or
amend the related prospectus as required by such Act or regulations. The Company
shall provide to the Warrant Agent Office sufficient copies of the related
prospectus for delivery to holders of Warrants upon exercise of Warrants and the
Warrant Agent will, upon each Warrant exercise, deliver a copy thereof to the
holder affecting such exercise.
SECTION 14. Adjustment of Exercise Price and Number of Shares
-------------------------------------------------
Purchasable. The Exercise Price and the number of Shares purchasable upon the
- -----------
exercise of each Warrant are subject to adjustment from time to time upon the
occurrence of the events enumerated in this Section 14.
(a) If the Company after the date hereof shall (i) pay a dividend
or make distribution in shares of its Common Stock, (ii) subdivide the
outstanding shares of Common Stock into a greater number of shares, or
(iii) combine the outstanding shares of Common Stock into a smaller number
of shares, than in any such case the Exercise Price in effect immediately
prior thereto shall be adjusted to a price obtained by multiplying such
Exercise Price by a fraction of which the numerator shall be the number of
shares of Common Stock outstanding prior to such action and the denominator
shall be the number of shares of Common Stock
-8-
<PAGE>
outstanding after giving effect to such action. An adjustment made pursuant
to clause (i) of this subsection (a) shall become effective immediately
after the record date for such dividend or distribution, and an adjustment
made pursuant to clause (ii) or (iii) of this subsection (a) shall become
effective immediately after the effective date of such subdivision or
combination.
(b) In case the Company after the date hereof shall issue rights
or warrants to all holders of Common Stock entitling them (for a period
expiring within 45 days after the record date mentioned below) to subscribe
for or purchase shares of Common Stock (or securities convertible into or
exchangeable for shares of Common Stock) at a price per share less than the
then-current market price per share of Common Stock (as determined pursuant
to subsection (d) below) on the record date (or, if applicable, the ex-
distribution date) mentioned below, the Exercise Price in effect
immediately prior thereto shall be adjusted to a price obtained by
multiplying such Exercise Price by a fraction of which (i) the numerator
shall be the number of shares of Common Stock outstanding on the date of
issuance of such rights or warrants plus the number of shares of Common
Stock which the aggregate offering price of the total number of shares so
to be offered would purchase at such current market price per share of
Common Stock, and (ii) the denominator shall be the number of shares of
Common Stock outstanding on the date of issuance of such rights or warrants
plus the number of additional shares of Common Stock to be offered for
subscription or purchase (or upon conversion or exchange). Any such
adjustments shall be made whenever such rights or warrants are issued and
shall be effective retroactive to the record date for the determination of
stockholders entitled to receive such rights or warrants.
In case such subscription price may be paid in consideration part
or all of which shall be other than cash, the value of such consideration
shall be reasonably determined by the Board of Directors of the Company
whose determination, as described in a statement filed by the Warrant
Agent, shall be conclusive.
(c) In case the Company after the date hereof shall distribute to
all holders of Common Stock evidences
-9-
<PAGE>
of its indebtedness or assets (excluding any cash dividend or distribution)
or shares of capital stock of any class other than the Common Stock or
grants rights to subscribe for securities other than those referred to in
subsection (b) above, in each such case the Exercise Price in effect
immediately prior thereto shall be adjusted to a price obtained by
multiplying such Exercise Price by a fraction of which (i) the numerator
shall be the current market price per share of Common Stock (determined as
provided in subsection (d) below) of the Common Stock on the record date
(or, if applicable, the ex-distribution date) mentioned below less the
then-current fair market value (as determined by the Board of Directors
whose determination shall be conclusive, and described in a statement filed
with the Warrant Agent) (the term "Board of Directors," when used in this
Agreement, shall mean the Board of Directors of the Company or any
committee of such Board of Directors duly authorized to exercise the power
of such Board of Directors with respect to the matters provided for in this
Agreement as to which the Board of Directors is authorized or required to
act) of the portion of the assets or evidence of indebtedness as
distributed or of such subscription rights or of such shares of capital
stock of any class other than the Common Stock, applicable to one share of
Common Stock, and (ii) the denominator shall be the then-current market
price per share of the Common Stock. Any such adjustment shall be made on
the date such distribution be made and shall be effective retroactive to
the record date for the determination of stockholders entitled to receive
such distribution.
(d) For the purpose of any computation under subsection (b) or (c)
above, the current market price per share of Common Stock on any date shall
be deemed to be the average of the daily Closing Prices of the shares of
Common Stock for the ten consecutive Trading Days (as defined below)
preceding the applicable record date (or, if applicable, the date on which
the Common Stock commences trading on an ex-distribution basis). The
"Closing Price" for each Trading Day (as defined below) shall be the last
reported sale price regular way or, in case no such reported sale takes
place on such Trading Day, the average of the closing bid and asked prices
regular way for such day, in each case on the principal national securities
exchange on which the shares of Common Stock are listed or admitted to
trading
-10-
<PAGE>
as designated by the Board of Directors of the Company or, if not listed or
admitted to trading, the last sale price regular way for the Common Stock
as published by NASDAQ, or if such last sale price is not so published by
NASDAQ or if no such sale takes place on such day, the mean between the
closing bid and asked prices for the Common Stock as published by NASDAQ.
If the prices of the Common Stock were not so reported on any such market,
the price of the Common Stock shall be the average of the closing bid and
asked prices as furnished by any member of the New York Stock Exchange
selected from time to time by the Company for that purpose. For the purpose
of this Subsection (d), "Trading Day" shall mean a day on which the
securities exchange specified for purposes of this Subsection (d) shall be
upon for business or, if the shares of Common Stock shall not be listed on
any such exchange for such period, a day with respect to which quotations
of the character referred to in the next preceding sentence shall be
reported.
(e) In any case in which this Section 14 shall require that an
adjustment be made immediately following a record date, the Company may
elect by written notice to the Warrant Agent to defer (but only until five
Trading Days following the filing by the Company with the Warrant Agent of
a certificate signed by the Chairman of the Board, the President or any
Vice President of the Company (an "Officer's Certificate") and a
certificate of a firm of independent public accountants as required in
subsection (g)) issuing to the holder of any Warrant exercised after such
record date the shares of Common Stock and any other capital stock of the
Company issuable upon such exercise in excess of the shares of Common Stock
issuable upon such exercise prior to such adjustment.
(f) No adjustment shall be required unless such adjustment would
require an increase or decrease of at least one percent in the Exercise
Price then subject to adjustment; provided, however, that any adjustments
-------- -------
that are not made by reason of this subsection (f) shall be carried forward
and taken into account in any subsequent adjustment.
(g) Whenever an adjustment in the Exercise Price is made as
required or permitted by the provisions of this Section 14, the Company
shall promptly file with
-11-
<PAGE>
the Warrant Agent (i) an Officer's Certificate and (ii) a certificate of a
firm of independent public accountants, in each case (x) setting forth the
adjusted Exercise Price as provided in this Section 14 and setting forth a
brief statement of the facts requiring such adjustment and the computation
thereof and (y) setting forth the number of shares of Common Stock (or
portions thereof) purchasable upon exercise of a Warrant after such
adjustment in the Exercise Price in accordance with subsection (k) below
after such adjustment in the Exercise Price and the record date therefor,
which Officer's Certificate and certificate of a firm of independent public
accountants, as the case may be, shall be conclusive evidence of the
correctness of any such adjustment and promptly after such filing by the
Warrant Agent at the Company's expense shall cause a notice of such
adjustment to be published at least once in a newspaper customarily
published on each business day and of general circulation (an "Authorized
Newspaper") in Zurich, Basle, Geneva and Berne, Switzerland. The Warrant
Agent shall be under no duty or responsibility with respect to any such
certificate except to exhibit the same to any holder of Warrants desiring
inspection thereof.
(h) In case:
(1) the Company shall declare a dividend (or any other
distribution) on shares of Common Stock payable form sources
other than its earned surplus; or
(2) the Company shall authorize the granting to all holders
of shares of Common Stock of any additional shares of Common
Stock or securities convertible into or exchangeable for shares
of Common Stock or rights to subscribe for or purchase any shares
of capital stock of any class or of any other right; or
(3) of any reclassification of shares of Common Stock (other
than a subdivision or combination of outstanding shares of Common
Stock), or of any consolidation or merger to which the Company is
a party and for which approval of any stockholders of the Company
is required, or of the sale or transfer of all or substantially
all of the assets of the Company; or
-12-
<PAGE>
(4) events shall have occurred resulting in the voluntary or
involuntary dissolution, liquidation or winding up of the
Company;
then the Company shall cause to be filed with the Warrant Agent, and
shall cause to be published at least once in an Authorized Newspaper
in Zurich, Basle, Geneva and Berne, Switzerland, at least ten days
prior to the applicable date hereinafter specified, a notice stating
(x) the date on which a record is to be taken for the purpose of such
dividend, distribution or rights, or, if a record is not to be taken,
the date as of which the holders of Common Stock of record to be
entitled to such dividend, distribution or rights are to be
determined, or (y) the date on which such reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or
winding up is expected to become effective, and, if applicable, the
date as of which it is expected that holders of Common Stock of record
shall be entitled to exchange their shares of Common Stock for
securities or other property (including cash) deliverable upon such
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up. Failure to give any such notice, or any
defect therein, shall not affect the validity of the proceedings
referred to in clauses (1), (2), (3) and (4) above.
(i) Anything in this Section 14 to the contrary notwithstanding,
the Company shall be entitled, but not required, to make such
reductions in the Exercise Price, in addition to those required by
this Section 14, as in its discretion it shall determine to be
advisable, including, without limitation, in order that any dividend
in or distribution of shares of Common Stock or shares of capital
stock of any class other than Common Stock, subdivision,
reclassification or combination of shares of Common Stock, issuance of
rights or warrants, or any other transaction having a similar effect,
shall not be treated as a distribution of property by the Company to
its stockholders under Section 305 of the Internal Revenue Code of
1954, as amended, or any successor provision and shall not be taxable
to them.
(j) As used herein, the term "Common Stock" shall mean (i) the
class of stock designated as the Common Stock of the Company at the
date of this Agreement, or
-13-
<PAGE>
(ii) any other class of stock resulting from successive changes or
reclassifications of such shares consisting solely of changes in par
value, or from par value to no par value or from no par value to par
value.
(k) Upon each adjustment of the Exercise Price pursuant to this
Section 14 the number of shares of Common Stock purchasable upon
exercise of a Warrant outstanding prior to the effectiveness of such
adjustment shall be adjusted to tho number of shares of Common Stock,
calculated to the nearest one-hundredth of a share, obtained by (1)
multiplying the number of shares of Common Stock purchasable
immediately prior to such adjustment upon the exercise of a Warrant by
the Exercise Price in effect immediately prior to such adjustment, and
(ii) dividing the product so obtained by the Exercise Price in effect
after such adjustment of the Exercise Price.
(l) Except as provided in Subsections (a) and (c) of this Section
14, no adjustment in respect of any dividends shall be made during the
term of a Warrant or upon the exercise of a Warrant.
(m) Irrespective of any adjustments in the Exercise Price or the
number or kind of shares purchasable upon the exercise of the
Warrants, Warrants theretofore or thereafter issued may continue to
express the same price and number and kind of shares as are stated in
the Warrants initially issuable pursuant to this Agreement.
SECTION 15. Fractional Shares.
-----------------
Notwithstanding an adjustment pursuant to Section 14(k) in the number of Shares
of Common Stock purchasable upon the exercise of a Warrant, the Company shall
not be required to issue fractions of Shares upon exercise of the Warrants or to
distribute certificates which evidence fractional Shares. In lieu of fractional
Shares, there shall be paid to the holders of Warrant Certificates at the time
such Warrant Certificates are exercised as herein provided an amount in cash in
Swiss francs equal to the same fraction of the excess of current market price
per share of Common Stock (as determined pursuant to Section 14(d)) over the
then Exercise Price. For such purpose, current market price shall be determined
as of the Trading Day as defined in Section 14(d), next preceding the day of
such exercise and
-14-
<PAGE>
shall be translated to Swiss francs at the closing buying rate for Swiss francs
on the New York spot market on the day next preceding the day of exercise when
banks were open for business in New York City.
SECTION 16. Rights Upon Consolidation, Merger, Sale, Transfer or
----------------------------------------------------
Reclassification. (a) In case of any consolidation with or merger of the
- ----------------
Company into another corporation (other than a merger or consolidation in which
the Company is the surviving corporation), or in case of any lease, sale or
conveyance of the property of the Company as an entirety or substantially as an
entirety, such successor, leasing or purchasing person or entity, as the case
may be, shall execute with the Warrant Agent a supplemental agreement (1)
providing that each holder of a Warrant shall have the right thereafter until
the Expiration Date to receive, upon exercise thereof, in lieu of each share of
Common Stock of the Company deliverable upon such exercise immediately prior to
such event, only the kind and amount of shares, other securities, property, cash
or any combination thereof receivable upon such consolidation, merger, lease,
sale or conveyance by a holder of one share of Common Stock of the Company, and
(2) setting forth the Exercise Price for the shares, other securities, property,
cash or any combination thereof so issuable, which shall be an amount equal to
the Exercise Price per share of Common Stock of the Company immediately prior to
such event.
(b) In case of any reclassification or change of the shares of Common
Stock issuable upon exercise of the Warrants (other than a change in par value,
or from par value to no par value, or as a result of a subdivision or
combination), or in case of any consolidation or merger of another corporation
into the Company in which the Company is the surviving corporation and in which
the holders of the shares of Common Stock thereafter receive shares, other
securities, property, cash or any combination thereof for such shares of Common
Stock (including for this purpose shares reflecting a change in par value or
from par value to no par value or as a result of a subdivision or combination of
the shares of Common Stock), the Company shall execute with the Warrant Agent a
supplemental agreement (1) providing that each holder of a Warrant shall have
the right thereafter (until the Expiration Date), to receive, upon exercise
thereof, in lieu of each share of Common Stock deliverable upon such exercise
immediately prior to such event, only the kind and amount of shares, other
securities, property, cash or any combination thereof receivable upon
-15-
<PAGE>
such reclassification, change, consolidation or merger by a holder of one share
of Common Stock, and (2) setting forth the Exercise Price for the shares, other
securities, property, cash or any combination thereof so issuable, which shall
be an amount equal to the Exercise Price per share of Common Stock immediately
prior to such event.
If, as a result of this subsection (b), the holder of any Warrant thereafter
surrendered for exercise shall become entitled to receive shares of two or more
classes of capital stock of the Company, the Board of Directors of the Company
(whose determination shall be conclusive and shall be described in a statement
filed with the Warrant Agent) shall determine the allocation of the Exercise
Price between or among shares of such classes of capital stock.
(c) Any supplemental agreement entered into pursuant to this Section
16 shall (1) where appropriate, state the Exercise Price in terms of one full
share of Common Stock of the Company or one full share of the common stock of
any successor, leasing or purchasing corporation and (2) provide for adjustments
that shall be as nearly equivalent as may be practicable to the adjustments
provided for herein.
(d) The above provisions of this Section 16 shall similarly apply to
successive reclassifications and changes of shares of Common Stock and to
successive consolidations, mergers, leases, sales or conveyances.
(e) Notice of the execution of any such supplemental agreement shall,
as soon as practicable after the execution of such supplemental agreement, be
published at least once in an Authorized Newspaper in Zurich, Basle, Geneva and
Berne, Switzerland.
SECTION 17. Merger, Consolidation or Change of Name of Warrant
--------------------------------------------------
Agent. Any corporation into which the Warrant Agent may be merged or converted
or with which it may be consolidated or any corporation resulting from any
merger, conversion or consolidation to which the Warrant Agent shall be a party,
shall be the successor to the Warrant Agent hereunder without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
provided that such corporation would be eligible for appointment as a successor
Warrant Agent under the provisions of Section 19.
SECTION 18. Warrant Agent. The Warrant Agent undertakes the duties
-------------
and obligations imposed by this Agreement
-16-
<PAGE>
upon the following terms and conditions, all of which the Company and the
holders of Warrants, by their acceptance thereof, shall be bound:
(a) The statements contained herein and in the Warrant Certificates
shall be taken as statements of the Company, and the Warrant Agent assumes
no responsibility for the correctness of any of the same except such as
describe the Warrant Agent or action taken or to be taken by it. Except as
herein otherwise provided, the Warrant Agent assumes no responsibility with
respect to the execution, delivery or distribution of the Warrant
Certificates.
(b) The Warrant Agent shall not be responsible for any failure of the
Company to comply with any of the covenants contained in this Agreement or
in the Warrant Certificates to be complied with by the Company nor shall it
at any time be under any duty or responsibility to any holder of a Warrant
to make or cause to be made any adjustment in the Exercise Price or in the
number of Shares issuable (except as instructed by the Company) upon
exercise of any Warrant, or to determine whether any facts exist which may
require any such adjustments, or with respect to the nature or extent of or
method employed in making any such adjustments when made.
(c) The Warrant Agent may consult at any time with counsel
satisfactory to it (who may be counsel for the Company) and the Warrant
Agent shall incur no liability or responsibility to the Company or any
holder of any warrant Certificate in respect of any action taken, suffered
or omitted by it hereunder in good faith and in accordance with the opinion
or the advice of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to
the Company or to any holder of any Warrant Certificate for any action
taken in reliance on any notice, resolution, waiver, consent, order,
certificate or other paper, document or instrument believed by it to be
genuine and to have been signed, sent or presented by the proper party or
parties.
(e) The Company agrees to pay the Warrant Agent reasonable
compensation for all services rendered by tho Warrant Agent under this
Agreement, to reimburse
-17-
<PAGE>
the Warrant Agent upon demand for all expenses, taxes and governmental
charges and other charges of any kind and nature incurred by the Warrant
Agent in the performance of its duties under this Agreement and to
indemnify the Warrant Agent and save it harmless against any and all
losses, liabilities and expenses, including judgments, costs and reasonable
counsel fees, for anything done or omitted by such Warrant Agent arising
out of or in connection with this Agreement except as a result of its gross
negligence or bad faith.
(f) The Warrant Agent shall be under no obligation to institute any
action, suit or legal proceeding or to take any other action likely to
involve expense unless the Company or one or more holders of Warrant
Certificates shall furnish the Warrant Agent with reasonable security and
indemnity for any costs or expenses which may be incurred. All rights of
action under this Agreement or under any of the Warrants may be enforced by
the Warrant Agent without the possession of any of the Warrant Certificates
or the production thereof at any trial or other proceeding relative
thereto, and any such action, suit or proceeding instituted by tho Warrant
Agent shall be brought in its name as Warrant Agent, and any recovery or
judgment shall be for the ratable benefit of the holders of the Warrants,
as their respective rights or interests may appear.
(g) The Warrant Agent, and any stockholder, director, officer or
employee thereof, or of any affiliated corporation thereof, may buy, sell
or deal in any of the Warrants or other securities of the Company or become
pecuniarily interested in any transaction in which the Company may be
interested, or contract with or lend money to the Company or otherwise act
as fully and freely as though it were not a Warrant Agent under this
Agreement, or a stockholder, director, officer or employee of the Warrant
Agent or one of its affiliated corporations, as the case may be. Nothing
herein shall preclude the Warrant Agent from acting in any other capacity
for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the
Company, and its duties shall be determined solely by the provisions
hereof. The Warrant Agent shall not be liable for anything which it may do
-18-
<PAGE>
or refrain from doing in connection with this Agreement except for its own
gross negligence or bad faith.
(i) The Company agrees that it will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all
such further and other acts, instruments and assurances as may reasonably
be required by the Warrant Agent for the carrying out or performing of the
provisions of this Agreement.
(j) The Warrant Agent shall be under no responsibility in respect of
the validity of this Agreement or the execution and delivery hereof (except
the due execution hereof by the Warrant Agent) or in respect of the
validity or execution of any Warrant Certificate; nor shall the Warrant
Agent by any act hereunder be deemed to make any representation or warranty
as to the authorization or reservation of the Shares to be issued pursuant
to this Agreement or any Warrant Certificate or as to whether the Shares
will when issued by validly issued, fully paid and nonassessable or as to
the Exercise Price or the number of Shares issuable upon exercise of any
Warrant.
(k) The Warrant Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from
the Chairman of the Board, the President, the Treasurer or any Vice
President, the Secretary or any Assistant Secretary of the Company, and to
apply to such officers for advice and instructions in connection with its
duties, and shall not be liable for any action taken or suffered to be
taken by it in good faith in accordance with instructions of any such
officer or in good faith reliance upon any statement signed by any one of
such officers of the Company with respect to any fact or matter (unless
other evidence in respect thereof is herein specifically prescribed) which
may be deemed to be conclusively proved and established by such signed
statement.
(l) The Warrant Agent may enter into servicing contracts or subagency
arrangements with third parties for the performance of any of the
administrative functions to be performed by the Warrant Agent hereunder.
-19-
<PAGE>
SECTION 19. Change of Warrant Agent. If the Warrant Agent shall
-----------------------
resign (such resignation to become effective not earlier than 30 days after the
giving of written notice thereof to the Company and the holders of Warrant
Certificates) or shall become incapable of acting as Warrant Agent or if the
Board of Directors of the Company shall by resolution remove the Warrant Agent
(such removal to become effective not earlier than 30 days after the filing of a
certified copy of said resolution with such Warrant Agent and the publication of
notice of such removal at least once in an Authorized Newspaper in Zurich,
Basle, Geneva and Berne, Switzerland) the Company shall appoint a successor to
the Warrant Agent. If the Company shall fail to make such appointment within a
period of 30 days after such removal or after it has been so notified in writing
of such resignation or incapacity by the Warrant Agent or by the holder of a
Warrant Certificate, then the holders of not less than twenty percent in number
of the then outstanding Warrants shall appoint a successor to such Warrant
Agent. Pending appointment of a successor to the Warrant Agent, either by the
Company or by such holders, the duties of the Warrant Agent shall be carried out
by the Company. Any successor Warrant Agent whether appointed by the Company or
by the holders shall be a bank or financial institution, incorporated and in
good standing under the laws of the Confederation of Switzerland and having an
office in Geneva, Switzerland and must have at the time of its appointment a
combined capital and surplus of at least Swiss francs 5,000,000. As soon as
practicable after appointment of the successor Warrant Agent, the Company shall
cause notice of the change in such Warrant Agent to be published at least once
in an Authorized Newspaper in Zurich, Basle, Geneva and Berne, Switzerland.
After appointment such successor Warrant Agent shall be vested with the same
powers, rights, duties and responsibilities as if it had been originally named
as Warrant Agent without further act or deed; but the former Warrant Agent shall
deliver and transfer to the successor Warrant Agent any property at the time
held by it hereunder and execute and deliver, at the expense of the Company, any
further assurance, conveyance, act or deed necessary for the purpose. Failure to
publish any notice provided for in this Section, however, or any defect therein,
shall not affect the legality or validity of the removal of a Warrant Agent or
the appointment of a successor Warrant Agent, as the case may be.
SECTION 20. Warrantholder Not Deemed a Shareholder. Nothing
--------------------------------------
contained in this Agreement or in any of
-20-
<PAGE>
the Warrant Certificates shall be construed as conferring upon the holders
thereof the right to vote or to receive dividends or to consent or to receive
notice as shareholders in respect of the meetings of shareholders or for the
election of directors of the Company or any other matter, or any rights
whatsoever as shareholders of the Company.
SECTION 21. Notices to Company and Warrant Agent. Any notice or
------------------------------------
demand authorized by this Agreement to be given or made by the Warrant Agent or
by any registered holder of any Warrant Certificate to or on the Company shall
be sufficiently given or made if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing by the Company with the
Warrant Agent), as follows:
Dennison Manufacturing Company
275 Wyman St.
Waltham, MA 02254
U.S.A.
Attention: Treasurer
---------
Any notice pursuant to this Agreement to be given by the Company or by
any registered holder of any Warrant Certificate to the Warrant Agent shall be
sufficiently given if sent by first-class mail, postage prepaid, addressed
(until another address is filed in writing by the Warrant Agent with the Company
and written notice thereof is given to registered holders of the Warrants) to
the Warrant Agent as follows:
First Chicago S.A.
6, Place des Eaux-Vives
1211 Geneva 6
Switzerland
SECTION 22. Supplements and Amendments. The Company and the Warrant
--------------------------
Agent may from time to time supplement or amend this Agreement without the
approval of any holders of Warrant Certificates in order to cure any ambiguity,
manifest error or other mistake in this Agreement, or to correct or supplement
any provision contained herein which may be defective or inconsistent with any
other provision herein, or to make any other provisions in regard to matters of
questions arising hereunder which the Company and the Warrant Agent may deem
necessary or desirable and which shall not adversely affect, alter or change the
interests of the holders of the Warrant Certificates.
-21-
<PAGE>
With the consent of not less than a majority in number of the then
outstanding Warrants, the Company and the Warrant Agent may modify this
Agreement for the purpose of adding any provision to or changing in any manner
or eliminating any of the provisions of this Agreement or modifying in any
manner the rights of the holders of the Warrant Certificates; provided, however,
--------
that no modification of the terms upon which the Warrants are exercisable or
reducing the percentage required for modification may be made without the
consent of the holder of each outstanding Warrant affected thereby.
SECTION 23. Successors. All the covenants and provisions of this
----------
Agreement by or for the benefit of the Company or the Warrant Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
SECTION 24. Termination. This Agreement shall terminate at the
-----------
close of business on the Expiration Date. Notwithstanding the foregoing, this
Agreement will terminate on any earlier date when all Warrants have been
exercised. The provisions of Section 18 shall survive such termination.
SECTION 25. Governing Law. This Agreement and each Warrant
-------------
Certificate issued hereunder shall be governed by and construed in accordance
with the laws of the Commonwealth of Massachusetts, U.S.A., except that
provisions herein relating to applications to courts of Switzerland or
compliance with laws or regulations thereof shall be governed by Swiss law.
SECTION 26. Jurisdiction. Any dispute which might arise between
------------
holders of Warrant Certificates, on the one hand, and the Company or the Warrant
Agent, or both, on the other shall fall within the jurisdiction of the Ordinary
Courts of the Canton of Geneva, the place of jurisdiction being Geneva, with the
right to appeal to the Swiss Federal Court in Lausanne, the judgment of which
shall be final. Solely in connection with matters relating to the Warrant
Certificates and for the purpose of enforcement thereof in Switzerland, the
Company irrevocably elects domicile with FIRST CHICAGO S.A., 65 rue du Rhone,
Geneva, Switzerland, which shall act as agent for service process in
Switzerland. Notwithstanding the foregoing, the holders of Warrant Certificates
shall have the right to enforce their rights or to take legal action before the
competent courts in the United States of America.
-22-
<PAGE>
SECTION 27. Benefits of this Agreement. Nothing in this Agreement
--------------------------
shall be construed to give to any person or corporation other than the Company,
the Warrant Agent and the holders of the Warrant Certificates any legal or
equitable right, remedy or claim under this Agreement; and this Agreement shall
be for the sole and exclusive benefit of the Company, the Warrant Agent and the
holders from time to time of the Warrant Certificates.
SECTION 28. Counterparts. This Agreement may be executed in any
------------
number of counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and such counterparts shall together constitute but
one and the same instrument.
SECTION 29. Table of Contents; Headings. The table of contents
---------------------------
and the headings of sections of this Agreement have been inserted for
convenience of reference only, are not to be considered a part hereof and shall
in no way modify or restrict any of the terms or provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, as of the day and year first above written.
DENNISON MANUFACTURING COMPANY
By
------------------------------
Title:
By
------------------------------
Title:
FIRST CHICAGO S.A.
as Warrant Agent
By
------------------------------
Title:
-23-
<PAGE>
EXHIBIT A
---------
[Form of Global Warrant Certificate]
THE WARRANTS REFERRED TO BELOW HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES FEDERAL SECURITIES ACT OF 1933 AND IN THE OFFERING THEREOF
PURSUANT TO THE BOND AND WARRANT ISSUE AGREEMENT DATED FEBRUARY 27, 1985
REFERRED TO BELOW HAVE NOT BEEN OFFERED IN THE UNITED STATES OF AMERICA OR TO
NATIONALS OR RESIDENTS THEREOF.
VOID AFTER February 21, 1997
This global Warrant Certificate evidences the holding by First Chicago
S.A. of _______________ Common Stock Purchase Warrants expiring February 21,
1997 sold by Dennison Manufacturing Company (the "Company") pursuant to the Bond
and Warrant Issue Agreement dated February 27, 1985 between the Company and
First Chicago S.A. and the other members of the banking consortium parties
thereto ("Issue Agreement"), such Warrants having been created and issued
pursuant to the Warrant Agreement dated as of February 27, 1985 between the
Company and First Chicago S.A., as Warrant Agent, the terms and provisions of
which are incorporated by reference herein. This global Warrant Certificate is
exchangeable against definitive Warrant Certificates in accordance with Article
X of the aforesaid Issue Agreement.
IN WITNESS WHEREOF, the Company has caused this global Warrant
Certificate to be duly executed.
Dated: March 21, 1985
DENNISON MANUFACTURING COMPANY
By
------------------------------
Title:
By
------------------------------
Title:
<PAGE>
EXHIBIT B
---------
[Form of Warrant Certificate]
No. _____________________ ___________________ Warrants
THE WARRANTS REFERRED TO BELOW HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES FEDERAL SECURITIES ACT OF 1933 AND IN THE OFFERING THEREOF
PURSUANT TO THE BOND AND WARRANT ISSUE AGREEMENT DATED FEBRUARY 27, 1985
REFERRED TO BELOW HAVE NOT BEEN OFFERED IN THE UNITED STATES OF AMERICA OR TO
NATIONALS OR RESIDENTS THEREOF.
VOID AFTER FEBRUARY 21, 1997
WARRANTS TO PURCHASE COMMON STOCK OF
DENNISON MANUFACTURING COMPANY
DENNISON MANUFACTURING COMPANY, a Nevada corporation (hereinafter
called the "Company"), for value received, hereby certifies that the bearer is
the owner of the number of Warrants set forth above, each of which represents
the right, on any business day commencing on June 24, 1985 and ending on or
before 5:00 p.m., Geneva time, on February 21, 1997, on which date such Warrants
expire, initially to purchase five shares of Common Stock, par value $1.00 per
share, of the Company (hereinafter called the "Common Stock") at the price of
Swiss francs ______ per share (the "Exercise Price"), subject to adjustment and
to the terms and conditions hereof and of the Warrant Agreement hereafter
referred to, each such purchase to be made, and to be deemed effective for the
purpose of determining the date of exercise, upon surrender hereof to First
Chicago, S.A. (the "Warrant Agent") at the office maintained for such purpose by
the Warrant Agent (or any successor warrant agent) in Geneva, Switzerland (the
"Warrant Agent Office') with the form of Election to Exercise attached hereto as
Annex I duly filled in and signed, and upon payment in full to the Warrant Agent
for the account of the Company of the Exercise Price in cash or by bank check as
provided in the Warrant Agreement hereafter referred to and upon compliance with
and subject to the conditions set forth herein and in the Warrant Agreement
hereinafter referred to including the payment of any Swiss turnover, stamp or
other Swiss tax applicable to the issue of Common Stock upon such exercise.
Warrants may also be presented for exercise, with the same effect as if
surrendered to the Warrant Agent, by (i) depositing this
<PAGE>
Exhibit B
page 2
Warrant Certificate with any paying agent with respect to the Bonds (each a
"Bond Paying Agent") at any paying agent office in Switzerland (each a "Paying
Agent Office") (except that if the Bonds shall have been redeemed, such Warrant
Certificate may only be presented for exercise at any of the offices in
Switzerland or Swiss Volksbank (the "Principal Paying Agent")), for forwarding
to, or upon the direction of, the Warrant Agent for processing, and (ii)
providing for the payment of the aggregate Exercise Price plus the amount with
respect to any applicable Swiss taxes (in cash or by bank check) at the Warrant
Agent Office.
The Exercise Price and the number of shares of Common Stock purchasable
on the exercise of each Warrant are subject to adjustment in certain events as
provided in the Warrant Agreement hereafter referred to.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of February 27, 1985 (herein called the "Warrant
Agreement"), between the Company and the Warrant Agent and is subject to all
terms and provisions of the Warrant Agreement, which terms and provisions are
hereby incorporated by reference herein and made a part hereof. Every holder of
this Warrant Certificate consents to all of the terms contained in the Warrant
Agreement by acceptance hereof. A copy of the Warrant Agreement is available
for inspection by the holder hereof at the Warrant Agent Office.
The Company shall not be required upon the exercise of the Warrants
represented hereby, or upon any adjustment, to issue fractions of shares of
Common Stock or to distribute stock certificates that evidence fractional shares
of Common Stock, but shall make adjustments in cash for any fraction of a share
as provided in the Warrant Agreement. If the Warrants represented hereby shall
be exercised in part, the holder hereof shall be entitled to receive, upon
surrender hereof, another Warrant Certificate for the balance of the number of
whole Warrants not exercised as provided in the Warrant Agreement.
This Warrant Certificate may be exchanged either separately or in
combination with other Warrant Certificates at the Warrant Agent Office for new
Warrant Certificates in authorized denominations representing the same aggregate
number of Warrants as were evidenced by the Warrant Certificate or Warrant
Certificates exchanged, upon surrender of this Warrant Certificate and upon
compliance with and subject
<PAGE>
Exhibit B
page 3
to the conditions set forth herein and in the Warrant Agreement. Warrant
Certificates may also be presented for exchange when surrendered at the Paying
Agent Office of any Bond Paying Agent (except that if the Bonds shall have been
redeemed, such Warrant Certificates may only be presented for exchange at any of
the offices in Switzerland of the Principal Paying Agent) for forwarding to, or
upon the direction of, the Warrant Agent for processing.
Every holder of Warrants, by accepting this Warrant Certificate,
consents and agrees with the Company, the Warrant Agent and with every
subsequent holder of this Warrant Certificate that the Company and the Warrant
Agent may deem and treat the bearer of this Warrant Certificate as the absolute
and lawful owner for all purposes whatsoever and neither the Company nor the
Warrant Agent shall be affected by any notice to the contrary.
Nothing contained in the Warrant Agreement or in this Warrant
Certificate shall be construed as conferring on the holder of any Warrants or
his transferee any rights whatsoever as a shareholder of the Company.
The Warrant Agreement and each Warrant Certificate, including this
Warrant Certificate, shall be deemed a contract made under the laws of the
Commonwealth of Massachusetts and for all purposes shall be construed in
accordance with the laws of the Commonwealth of Massachusetts except that
provisions relating to applications to courts of Switzerland or compliance with
laws or regulations thereof shall be governed by Swiss law.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed.
Dated:
DENNISON MANUFACTURING COMPANY
By
------------------------------
Title:
By
------------------------------
Title:
<PAGE>
ANNEX I
-------
ELECTION TO EXERCISE
(To be executed upon exercise of Warrant)
TO DENNISON MANUFACTURING COMPANY:
The undersigned hereby irrevocably elects to exercise the right of
purchase represented by the within Warrant Certificate for, and to purchase
thereunder, _____ shares of Common Stock, as provided for therein, and tenders
herewith payment of the purchase price in full in the form of [cash] [bank check
in the amount of Swiss francs ______.]/1/ (delete one)
Please issue a certificate or certificates for such shares of Common
Stock in
Name
------------------------------
(Please Print Name and
Address
---------------------------
Signature
--------------------------
AND, if such number of shares shall not be all the shares purchasable under the
within Warrant Certificate, a new Warrant Certificate for the balance remaining
of the shares purchasable thereunder (less any fraction of a share paid in cash)
which shall be delivered to
__________________________
__________________________
(insert name and address of
addressee to receive new
Warrant Certificate)
- --------------------
/1/ The amount of payment must include any Swiss turnover, stop or other tax
applicable to the issue of Common Stock upon such exercise.
<PAGE>
ANNEX I
page 2
Dated: _________, 19____
Name
------------------------------
Signature
-------------------------
(Name and signature of exercising
Warrantholder)
<PAGE>
ANNEX I
page 3
TEXT OF DEFINITIVE BONDS
- ------------------------
Face of the Bond:
- ----------------
This Bond has not been and will not be registered under the Securities Act of
1933 of the United States of America.
Any United States Person who holds this obligation will be subject to
limitations under the United States income tax laws, including the limitations
provided in Sections 165 (j) and 1287 (a) of the Internal Revenue Code. For the
purposes of this Bond a "United States Person" includes any national or resident
of the United States of America (including any corporation, partnership or other
entity organized under the laws thereof or any political subdivision thereof and
any estate or trust which is subject to United States federal income taxation
regardless of the source of its income.
DENNISON MANUFACTURING COMPANY
(a corporation organized under the
laws of the State of Nevada, U.S.A.)
5 1/8% Bonds 1985-1997
of Swiss Francs 100,000,000.--
--------------
due March 21, 1997
BEARER BOND OF SWISS FRANCS...............-- *)
--------------------------------------------
No. 0001 - ....
----
Dennison Manufacturing Company, a corporation organized under the laws of the
State of Nevada, U.S.A. (the "Company"), for value received, promises to pay to
the holder of this Bond on March 21, 1997 (or on such earlier date as the
principal amount hereinafter mentioned may become repayable in accordance with
the terms and conditions printed on the back hereof) upon presentation and
surrender of this Bond at any office in Switzerland of Swiss Volksbank,
Nordfinanz-Bank Zurich, Kredietbank (Suisse) S.A., Clariden Bank, Lloyds Bank
International Ltd., Amro Banque et Finance, Bank CIAL (Schweiz) -Credit
Industriel d'Alsace et de Lorraine AG-, Armand von Ernst & Cie AG, Banco di Roma
per la Svizzera, Banque Generale du Luxembourg (Suisse) S.A., Banque Indosuez,
Succursales de Suisse, Banque Morgan Grenfell en Suisse S.A., Caisse d'Epargne
du Valais, Fuji Bank (Schweiz) AG, Gewerbebank Baden, Handelsfinanz Midland
Bank, Hypothekar- und Handelsbank Winterthur, Maerki, Baumann & Co. AG,
Sparkasse Schwyz, Bank Heusser & Cie AG, Banque Bruxelles Lambert (Suisse) S.A.,
Banque Gutzwiller, Kurz, Bungener S.A., Credit Commercial de France (Suisse)
S.A., Dai-Ichi Kangyo Bank (Schweiz) AG, LTCB (Schweiz) AG, Soditic S.A. and The
Royal Bank of Canada (Suisse) the principal
<PAGE>
ANNEX I
page 4
amount of Swiss Francs ......... -- *) (............. Swiss Francs) subject to
------------ -------------
and in accordance with the terms and conditions printed on the back hereof.
Interest is payable annually in arrears at a rate of 5 1/8% per annum upon
presentation and surrender at the aforesaid offices of the attached coupons in
accordance with such terms and conditions.
This Bond is one of a series of Bonds of the Company in the aggregate principal
amount of Swiss Francs 100,000,000.-- (hereinafter referred to as the "Bonds"),
issued under and pursuant to a Bond and Warrant Issue Agreement dated February
27, 1985 (the "Bond and Warrant Issue Agreement"), duly executed by and among
the Company of the first part, and First Chicago S.A. and a Consortium of
Financial Institutions as mentioned therein of the second part. The Bonds are
issued subject to and with the benefit of the terms of the Bonds appearing on
the reverse hereof. English shall be the prevailing language for the
understanding and interpretation of the Company's undertaking as evidenced by
this Bond.
IN WITNESS WHEREOF, the Company has caused the Bond to be signed in facsimile by
its President and its Treasurer dated March 21, 1985 and not delivered prior to
June 24, 1985.
DENNISON MANUFACTURING COMPANY
by ________________________________
Nelson S. Gifford
President
by ________________________________
Alden R. Grove
Treasurer
<PAGE>
REVERSE SIDE OF THE BOND
- ------------------------
1. Denominations
-------------
This issue is represented by bearer Bonds in an aggregate principal amount
of Swiss Francs 100,000,000.-- in denominations of Swiss Francs 5,000.--
and Swiss Francs 100,000.-- principal amount.
2. Interest
--------
The Bonds bear interest on the principal amount from March 21, 1985 at the
rate of 5 1/8% (five and one-eighth per cent) per annum in arrears, the
first interest payment being due March 21, 1986 and thereafter payable on
March 21 of each year (hereinafter called the "Interest Payment Date"). For
this purpose, the Bonds are issued with 5 1/8% annual coupons (hereinafter
called the "Coupons"). The Bonds will cease to bear interest on the date on
which they become due for redemption or repayment if funds are duly made
available on such date for the redemption or repayment. Interest on the
Bonds in the event of redemption will be computed on the basis of a 360-day
year of twelve 30-day months.
3. Repayment
---------
The Company undertakes to repay the principal amount of the Bonds then
outstanding without further notice on March 21, 1997 unless repayment
occurs earlier pursuant to the terms hereinafter.
4. Transfer of Funds
-----------------
The Company undertakes to pay to Swiss Volksbank (hereinafter called the
"Principal Paying Agent") two Business Days prior to each date when the
Coupons or the Bonds become due (such latter date being hereinafter called
the "Due Date") the aggregate amount of the respective face values of all
Coupons and all Bonds plus premiums and Additional Amounts (as defined in
Section 5 hereof), if any, which become due on such Due Date in lawful
money of the Confederation of Switzerland, freely disposable outside of any
bilateral or multilateral payment or clearing agreement which may exist
between the United States of America and Switzerland at the time of
transfer of payment. Subject to the provisions of Section 5 hereof,
payments by the Company shall be effected in full and without any
deductions or conditions precedent irrespective of nationality or domicile
of the Bondholders and Couponholders, and without requiring any affidavit
or the fulfillment of any other formality. The Principal Paying Agent
shall credit all fund
<PAGE>
received from the Company to a separate non-interest bearing account to be
opened with itself. "Business Day" shall mean a day on which banks
generally are open for business in Zurich, Basle, Geneva and Berne.
To the extent and when payments under the Bonds are received by the
Principal Paying Agent, the Company shall be released from the respective
payment obligations for principal, interest, premiums and Additional
Amounts, if any.
The Principal Paying Agent will transmit all amounts due under the Bonds
and the Coupons to the extent received from the Company proportionally to
the Bondholders (and/or the Financial Institutions listed on the face of
this Bond) with good value (interest, principal amounts, premiums,
Additional Amounts (as defined in Section 5 hereinafter) and other
payments) to accounts in Switzerland which the Bondholders and/or the
Financial Institutions listed on the face of this Bond in due course have
notified to the Principal Paying Agent.
Repayment of the Bonds will be effected upon presentation and surrender of
the Bonds with all unmatured Coupons attached, and payments of the Coupons
will be effected upon presentation and surrender of the Coupons at the
counters of any of the offices in Switzerland of any of the following
institutions, which are instructed by the Company to pay to the Bondholders
all amounts due under the Bonds and the Coupons to the extent received from
the Company:
Swiss Volksbank
Nordfinanz-Bank Zurich
Kredietbank (Suisse) S.A.
Clariden Bank
Lloyds Bank International Ltd.
Amro Banque et Finance
Bank CIAL (Schweiz)
- Credit Industriel d'Alsace et de Lorraine AG -
Armand von Ernst & Cie AG
Banco di Roma per la Svizzera
Banque Generale du Luxembourg (Suisse) S.A.
Banque Indosuez, Succursales de Suisse
Banque Morgan Grenfell en Suisse S.A.
Caisse d'Epargne du Valais
Fuji Bank (Schweiz) AG
Gewerbebank Baden
Handelsfinanz Midland Bank
Hypothekar- und Handelsbank Winterthur
<PAGE>
Maerki, Baumann & Co. AG
Sparkasse Schwyz
Bank Heusser & Cie AG
Banque Bruxelles Lambert (Suisse) S.A.
Banque Gutzwiller, Kurz, Bungener S.A.
Credit Commercial de France (Suisse) S.A.
Dai-Ichi Kangyo Bank (Schweiz) AG
LTCB (Schweiz) AG
Soditic S.A.
The Royal Bank of Canada (Suisse)
If at any time during the life of the Bonds the Principal Paying Agent
shall resign or be incapable, for any reason, of accepting funds to become
due under the Bonds or Coupons as contemplated by the terms and conditions
herein, the Bondholders expressly agree as follows: the absolute majority
of the institutions other than the Principal Paying Agent mentioned in this
Section 4 shall, after consultation with the Company, appoint an alternate
institution to replace the Principal Paying Agent in these functions. If
the institutions shall fail to appoint another such institution to replace
the Principal Paying Agent within 30 days upon demand by the Company, then
the Company shall appoint the replacement institution. In the event of any
replacement of the Principal Paying Agent hereunder, then all references to
the Principal Paying Agent shall be deemed to include such replacement
institution for the purposes of this Bond. The appointment of the
replacement institution shall be published in the newspapers as provided
for in Section 11 hereof.
5. Taxation
--------
All payments of interest and principal, plus premium (if any), shall be
made by the Company in Switzerland without deduction of any taxes, imposts,
penalties, duties, assessments or governmental charges of any kind or
nature at source (hereinafter individually referred to as "Taxes"), present
or future, which are required to be withheld (including, without
limitation, back-up withholding) by the Company (or any Paying Agent as
such or in its capacity as custodian, nominee or other agent of the holder
of any Bond or Coupon), and which are levied or imposed or to be levied or
imposed by the United States of America, including its possessions and
territories and areas subject to its jurisdiction (including the
Commonwealth of Puerto Rico), or any political subdivision thereof (a
"Taxing Jurisdiction").
In the event that any such Taxes should at any time be imposed or levied by
any such Taxing Jurisdiction, the Company shall remit to the Principal
Paying Agent such additional amounts (the "Additional Amounts") as may be
necessary to ensure
<PAGE>
that after deduction of any such Taxes of a Taxing Jurisdiction, but before
any deduction made in pursuance of Swiss law, every net payment of the
principal, premium (if any), and interest on a Bond will not be less than
the face amount of any Coupon and the principal amount of any Bond that may
be due and owing at the time of payment thereof, plus premium (if any).
The Company's obligation to remit such Additional Amounts shall not be
subject to the fulfillment of any disclosure or certification requirement
with respect to the nationality, residence, status or identity of the
recipient of the payment or the beneficial owner of the Bond and/or Coupons
in question.
The foregoing provisions, however, do not exempt a holder of a Bond or
Coupon from any Taxes imposed or levied in a Taxing Jurisdiction and the
Company shall not be obligated to remit funds and pay Additional Amounts on
account of such Taxes if the holder of the Bond or Coupon is subject to
taxation in or by a Taxing Jurisdiction for any reason other than his
ownership of, or receipt of principal, premium (if any) or interest in
respect of, the Bond or Coupon considered alone and without regard to any
other factor such as (without limitation) such holder's past or present
transactions with or relationship to the Company or the Taxing
Jurisdiction.
If at any time the Company (i) determines that it either is or will be
obligated to pay Additional Amounts pursuant to this Section 5, or (ii)
determines that it either is or will be prohibited from performing or
observing any of its obligations under this Section 5, then the Company
may, on giving not less than 60 days notice to FIRST CHICAGO S.A., redeem
on any date thereafter, as a whole but not in part, the Bonds at the
following percentages of the principal amount:
102 % in case of redemption prior to March 21, 1986
101, 5 % in case of redemption on or after March 21, 1986 but prior to
March 21, 1987
101 % in case of redemption on or after March 21, 1987 but prior to
March 21, 1988
100, 5 % in case of redemption on or after March 21, 1988 but prior to
March 21, 1989
100 % in case of redemption on or after March 21, 1989
plus, in each case. the interest accrued until the date of redemption.
<PAGE>
Prior to the publication of notice of redemption of the Bonds pursuant to
Section 11 hereof, the Company will deliver to FIRST CHICAGO S.A. a
certificate of the Company (upon which FIRST CHICAGO S.A. may conclusively
rely) stating that the Company is entitled to effect such redemption and
setting forth in reasonable detail a statement of facts showing that the
conditions precedent to such right of the Company to redeem the Bonds have
occurred.
The Bonds called for redemption must be presented for repayment with all
unmatured Coupons attached; the amount of missing unmatured Coupons will be
deducted from the amount due for repayment, but such Coupons shall be paid
upon subsequent presentation and surrender provided that payment thereof
has not become barred by prescription in accordance with Swiss law.
The interest on the Bonds is, in accordance with Swiss law at present in
force, not subject to the Swiss Federal withholding tax.
6. Status of the Bonds and Negative Pledge
---------------------------------------
a) Status of Bonds
---------------
The Bonds and the Coupons constitute unsecured and unsubordinated
obligations of the Company ranking equally and ratably (pari passu)
with all other present and future unsecured indebtedness of the
Company subject to statutory exceptions as provided for in the laws
and regulations of the United States of America or any State thereof.
b) Limitation on Liens
-------------------
The Company covenants that, so long as any of the Bonds remain
outstanding, it will not, nor will it permit any Subsidiary (as
hereinafter defined) to, issue, assume or guarantee any Debt (as
hereinafter defined) secured by any mortgage or other encumbrance
("mortgage") on any property of the Company or any Subsidiary or upon
any shares of stock or indebtedness of any Subsidiary (whether such
property, shares of stock or indebtedness are now owned or hereafter
acquired) without in any such case effectively providing concurrently
with the issuance, assumption or guaranty of any such Debt that the
Bonds shall be secured equally and ratably with such Debt. For the
purposes of this Section, the term "Subsidiary" shall mean any
corporation of which at least a majority of the outstanding stock
having voting power under ordinary circumstances to elect a majority
of the board of directors of said corporation shall at the time be
owned by the
<PAGE>
Company, or by the Company and one or more Subsidiaries, or by one or
more Subsidiaries. The term "Debt" shall mean indebtedness for money
borrowed.
The foregoing restrictions shall not apply to Debt secured by (i)
mortgages on property, shares of stock or indebtedness of any
corporation existing at the time such corporation becomes a
Subsidiary; (ii) mortgages in favor of the Company or any Subsidiary:
(iii) mortgages in favor of any governmental body to secure progress,
advance or other payments pursuant to any contract or provision of any
statute: (iv) mortgages on property, shares of stock or indebtedness
existing at the time of acquisition thereof (including acquisition
through merger or consolidation) or to secure the payment of all or
any part of the purchase price thereof or construction thereon or to
secure any indebtedness incurred prior to, at the time of, or within
360 days after the later of the acquisition of such property, shares
of stock or indebtedness or the completion of construction for the
purpose of financing all or any part of the purchase price thereof or
construction thereon; (v) mortgages securing, directly or indirectly,
obligations issued by a State, territory or possession of the United
States, any political subdivision of any of the foregoing or the
District of Columbia, or any instrumentality of any of the foregoing
to finance the acquisition or construction of property; or (vi) any
extensions, renewals or replacements, as a whole or in part, of any
mortgage referred to in the foregoing clauses (i) to (v), inclusive;
provided, however, that such extension, renewal or replacement
-------- -------
mortgage shall be limited to all or part of the same property, shares
of stock or indebtedness that secured the mortgage extended, renewed
or replaced (plus improvements on such property).
Notwithstanding the foregoing provisions, the Company may, and the
Company may permit a Subsidiary to, issue, assume, or guarantee Debt
secured by mortgages not excepted in the covenants above without
equally and ratably securing the Bonds provided, however, that the
-------- -------
aggregate principal amount of all such secured Debt issued, assumed or
guaranteed after March 21, 1985 and then outstanding, plus the
principal amount of the secured Debt then being issued, assumed or
guaranteed, and the aggregate amount of the Attributable Debt (as
hereinafter defined) in respect of sale and lease-back arrangements,
shall not exceed 5 percent of the Consolidated Net Tangible Assets (as
hereinafter defined) of the Company and its consolidated Subsidiaries,
as shown on the latest audited consolidated financial statements of
the Company. "Attributable Debt" in respect of a sale and lease-back
arrangement shall mean the lesser of (a) the fair value of the
property subject to such arrangement (as determined by the Board of
Directors of the
<PAGE>
Company) and (b) the present value (discounted at the U.S. dollar
corporate base rate of The First National Bank of Chicago) of the
total obligations of the lessee for rental payments during the
remaining term of the lease included in such arrangement (including
any period for which such lease has been extended); provided, however,
-------- -------
that for the purposes of the limitations upon the Company and its
Subsidiaries there shall not be deemed to be any Attributable Debt in
respect of a sale and lease-back arrangement if the Company or a
Subsidiary would, apart from the provisions of this paragraph, be
entitled to issue, assume or guarantee Debt secured by a mortgage on
the property involved in such arrangement without equally and ratably
securing the Bonds. "Consolidated Net Tangible Assets" shall mean the
aggregate amount of assets less current liabilities, all as determined
and consolidated in accordance with generally accepted accounting
principles.
c) Limitation on Sale and Lease-Back
---------------------------------
The Company covenants that, so long as any of the Bonds remain
outstanding, it will not, nor will it permit any Subsidiary to, enter
into any arrangement with any person providing for the leasing by the
Company or any Subsidiary of any property (except for temporary leases
for a term of not more than three years), which property has been or
is to be sold or transferred by the Company or such Subsidiary to such
person, unless (a) the Company or such Subsidiary would be entitled to
issue, assume or guarantee Debt, secured by a mortgage on such
property, in a principal amount equivalent to the Attributable Debt in
respect of such arrangement without equally and ratably securing the
Bonds, or (b) the Company shall apply or cause to be applied an amount
in cash equal to the net proceeds of such sale to the retirement of
Debt (other than Debt owned by the Company or any Subsidiary) which
matures more than twelve months after the date of its creation, or
shall apply such proceeds to investment in another property within a
period not exceeding twelve months prior or subsequent to any such
arrangement.
7. Repayment in Event of Default
-----------------------------
FIRST CHICAGO S.A. shall have the right, but not the obligation, on behalf
of the Bondholders, to declare the principal amount of the Bonds, together
with accrued interest thereon and premium and Additional Amounts, if any,
to be immediately due and payable, if any of the following events shall
have occurred and be continuing (hereinafter called the "Events of
Default") by sending to the Company by registered airmail a written notice
thereof:
<PAGE>
a) The Company shall fail to pay principal and premium, if any, on the
Bonds when due or shall be in default for a continuous period of 30
days in the payment of interest and/or Additional Amounts, if any, on
the Bonds; or
b) The Company shall be in default in the performance or the observance
of any of the terms of the Bonds for a continuous period of 60 days;
or
c) The Company shall, with respect to indebtedness for money borrowed by
it or assumed by it which exceeds in the aggregate US$ 10,000,000.--,
default in the payment of any installment of interest and such default
shall continue for the period of grace, if any, provided for therein,
or shall default in the payment of any principal or premium, and the
time for payment of such interest, principal or premium shall not have
been effectively extended, and such default is in the opinion of FIRST
CHICAGO S.A. materially prejudicial to the interest of the
Bondholders, unless the Company is contesting in good faith its
liability for the payment of the installment of interest or of
principal or premium in question and shall have been advised by its
counsel that it has a meritorious defense thereto: or
d) The Company shall (i) apply for or consent to the appointment of a
receiver, trustee, liquidator or custodian or the like of itself or
its property, (ii) admit in writing its inability to pay its debts
generally as they become due, (iii) make a general assignment for the
benefit of its creditors or (iv) commence a voluntary case under the
Federal bankruptcy laws of the United States of America or file a
voluntary petition or answer seeking reorganization, an arrangement
with creditors or an order for relief or seeking to take advantage of
any insolvency law or file an answer admitting the material
allegations of a petition filed against it in any bankruptcy,
reorganization or insolvency proceeding, or action shall be taken by
it for the purpose of effecting any of the foregoing, or
e) A decree or order by a court having jurisdiction shall have been
entered and shall have continued undischarged and unstayed for 30
days, adjudging the Company bankrupt or insolvent, approving a
petition seeking its reorganization under any bankruptcy, insolvency,
reorganization or similar law, appointing a receiver, liquidator,
trustee or assignee in bankruptcy or insolvency or sequestrator or
similar official of it or of substantially all of its property or
directing its liquidation or dissolution; or
f) Any of the representations and warranties made by the Company under
the Bond and Warrant Issue Agreement shall prove to have been untrue
or
<PAGE>
incorrect in any material respect when made and such untruth or
incorrectness is not remedied to the satisfaction of FIRST CHICAGO
S.A. within 30 days after respective notice has been given to the
Company; or
g) The Company shall be dissolved or liquidated.
In acting hereunder, FIRST CHICAGO S.A. may in every respect rely on
information received from the Company and the Principal Paying Agent.
8. Merger, Sale or Transfer of Assets
----------------------------------
All outstanding Bonds shall become due and payable at their principal
amount plus accrued interest, upon 30 days notice to the Company by FIRST
CHICAGO S.A., if the Company shall merge or consolidate with, or sell or
convey all or substantially all of its assets to any other corporation,
unless (a) either (A) the Company shall be the surviving corporation in the
case of a merger or (B) the surviving, resulting or transferee corporation,
(i) shall be a corporation organized under the laws of one of the States of
the United States of America, (ii) shall expressly assume the due and
punctual payment (including any Additional Amounts payable pursuant to
Section 5 hereof) of all the Bonds, according to their tenor, and the due
and punctual performance of all the covenants and obligations of the
Company under the Bonds, the coupons and the terms and conditions of the
Bonds by supplemental agreement satisfactory to FIRST CHICAGO S.A.,
provided that such surviving, resulting or transferee corporation shall
also provide all necessary information to FIRST CHICAGO S.A. to enable
FIRST CHICAGO S.A. to reapply on behalf of the surviving, resulting or
transferee corporation for the admission and quotation of the Bonds so
assumed on the Stock Exchanges of Zurich, Basle, Geneva and Berne under the
then existing rules and regulations of such Stock Exchanges, including but
not limited to the publication of a prospectus and other necessary
publications, at the cost of the surviving, resulting or transferee
corporation and (iii) shall agree to indemnify and hold harmless the holder
of each Bond against any tax, assessment or governmental charge imposed on
such holder by a jurisdiction other than the United States of America or
any political subdivision or taxing authority thereof or therein which
would not have been so imposed had such merger, consolidation, sale,
conveyance, transfer or other disposition not been made, and unless (b) the
Company or such surviving, resulting or transferee corporation, as the case
may be, is not, immediately after such merger, consolidation, sale or
conveyance, in default in the performance of any covenants or obligations
of the Company under the Bonds or the terms and conditions of the Bonds.
Upon any such merger, consolidation, sale, conveyance or assumption the
surviving, resulting or transferee corporation shall succeed to and may
exercise every right and power of and be subject to all the
<PAGE>
obligations of, the Company under the Bonds with the same effect as if such
surviving, resulting or transferee corporation had been named as the
Company herein, and the Company shall be released from its liability as
obligor under the Bonds.
9. Prescription
------------
By virtue of the Statute of Limitations of Swiss law presently in force,
payment of the Coupons shall become barred after a period of five years and
the Bonds after a period of ten years, calculated from their respective due
dates.
10. Listing
-------
Application shall be made for the admission and listing of the Bonds on the
Stock Exchanges of Zurich, Basle, Geneva and Berne.
11. Notices
-------
All notices to the Bondholders and Couponholders regarding the Bonds and
the Coupons shall be transmitted through FIRST CHICAGO S.A. in the event
that all Bondholders and Couponholders are known to FIRST CHICAGO S.A. or,
if this is not the case, shall be valid and effective if published by FIRST
CHICAGO S.A. in the Feuille Officielle Suisse du Commerce and in at least
one daily newspaper published in Zurich, Basle, Geneva and Berne, subject
to the then prevailing regulations of the Swiss National Bank, if any.
All notices to the Company by any Bondholder or Couponholder shall be
transmitted through FIRST CHICAGO S.A. exclusively.
12. Replacement of Bonds and Coupons
--------------------------------
Bonds or Coupons which are mutilated, lost, stolen or destroyed may be
replaced at the offices of the Principal Paying Agent against payment of
such costs as may be incurred in connection with the replacement and on
such terms as to evidence and indemnity as the Company and the Principal
Paying Agent may require and, in the case of mutilation, upon surrender of
the mutilated Bonds or Coupons. In the case of loss or theft, the
provisions of Swiss law regarding the loss or theft of bearer instruments
will apply.
<PAGE>
13. Representation of the Bondholders
---------------------------------
FIRST CHICAGO S.A. agrees to act as representative of the Bondholders in
the sense of Article 1158 of the Swiss Code of Obligations. If at any time
during the life of the Bonds FIRST CHICAGO S.A. shall resign or shall be
incapable of fulfilling its function as representative of the Bondholders,
the Bondholders expressly agree to the same replacement procedure as
provided for in Section 4 for the Principal Paying Agent.
14. Currency Indemnity
------------------
In the event that any sum due from the Company with respect to the Bonds
has to be converted from Swiss Francs (the "first currency") into another
currency (the "second currency") for the purpose of (i) making or filing a
claim or proof against the Company, (ii) obtaining on order or judgment in
any court or other tribunal or (iii) enforcing any order or judgment given
or made in relation hereto, the Company shall indemnify and hold harmless
the Bondholders from and against any loss suffered as a result of any
discrepancy between (a) the rate of exchange used for such purpose to
convert the sum in question from the first currency into the second
currency and (b) the rate or rates of exchange at which FIRST CHICAGO S.A.,
on behalf of the Bondholders, may in the ordinary course of business
purchase the first currency with the second currency on the date or dates
of receipt by FIRST CHICAGO S.A. of any sum paid in satisfaction in whole
or in part of any such order, judgment, claim or proof.
15. Applicable Law and Jurisdiction
-------------------------------
The terms, conditions and form of the Bonds and Coupons shall be subject
to, governed by and construed in accordance with Swiss law. Any dispute
which might arise between the Bondholders on the one hand and the Company
on the other hand regarding the Bonds and/or the Coupons shall be settled
in accordance with Swiss law and falls within the jurisdiction of the
Ordinary Courts of the Canton of Geneva, the place of jurisdiction being
Geneva, with the right of recourse to the Swiss Federal Court of Justice in
Lausanne. Solely for that purpose and for the purpose of enforcement in
Switzerland, the Company elects legal and special domicile at FIRST CHICAGO
S.A., 6, Place des Eaux-Vives, 1211 Geneva 6, Switzerland, which shall
forthwith notify the Company of any communication received under this
Section.
The above-mentioned courts shall also have exclusive jurisdiction for the
annulment (declaration of cancellation) and the subsequent replacement of
stolen, lost, defaced or destroyed Bonds or Coupon sheets and for the
appropriate measures regarding
<PAGE>
lost, stolen, misplaced or destroyed single Coupons. Payments made to any
person recognized as the rightful Bondholder or Couponholder in accordance
with the enforceable decision of a Swiss Court shall effect a final and
absolute discharge of the obligations of the Company with respect of such
Bond or Coupon.
Notwithstanding the above, the Bondholders shall, to the extent permitted
by local law, have the right to enforce their rights and to take legal
action before the competent Federal or State Courts in the United States of
America, in which case Swiss law shall remain applicable with respect to
the terms and conditions of the Bonds and Coupons.
<PAGE>
ANNEX C
[Letterhead of Bingham, Dana & Gould]
March __, 1985
Dennison Manufacturing Company
275 Wyman Street
Waltham, MA 02254
First Chicago S.A.
65 Rue du Rhone
1211-Geneva 3
Switzerland
Gentlemen:
Re: Issue of SFr 100,000,000 Principal Amount
of % Bearer Bonds and Related Warrants
------------------------------------------
We have acted as United States counsel for Dennison Manufacturing Company,
a Nevada corporation (the "Company"), in connection with the issuance and sale
by the Company of Swiss francs 100,000,000 aggregate principal amount of the
Company's ___% Bonds (the "Bonds") pursuant to the Bond and Warrant Issue
Agreement dated February 27, 1985 (the "Agreement") among First Chicago S.A. as
representative of the members of the Consortium listed therein (the
"Consortium"), the members of the Consortium and the Company and _____________
bearer warrants (the "Warrants") to purchase an aggregate of ________ shares of
the Company's U.S. $1 par value common stock (the "Common Stock") pursuant to
the Warrant Agreement dated February 27, 1985 (the "Warrant Agreement") between
the Company and First Chicago S.A. The Bonds, which will be issued solely as
bearer bonds in denominations of Swiss francs 5,000 and Swiss francs 100,000 and
each of which initially will have _____ Warrants attached (if in the SFr 5,000
denomination) and _______ Warrants attached (if in the SFr 100,000
denomination), were sold by the members of the Consortium in a public offering
in Switzerland. A Global Bond in the principal amount of Swiss francs
100,000,000 (the "Global Bond") and a Global Warrant Certificate representing
_______ Warrants (the "Global Warrant") are being issued by the Company to First
Chicago S.A. at the Closing today, and definitive Bonds and Warrants are to be
made available to the holders of interests therein on or after June 24, 1985.
<PAGE>
Dennison Manufacturing Company
First Chicago S.A.
March ___, 1985
Page 2
The Bonds and the Agreement are stated to be governed by Swiss law. The
Warrant Agreement and the Warrants are stated to be governed by the laws of the
Commonwealth of Massachusetts. First Chicago S.A., and various other Swiss
banking institutions will be exclusive paying agents with respect to the Bonds
and First Chicago S.A. will be the sole warrant agent with respect to the
Warrants. All payments to be made on or in respect of the Bonds are payable in
Swiss francs solely upon presentation of the Bonds and/or related Coupons at the
offices of the paying agents in Switzerland. Each Bond and Coupon will carry the
following legend: "Any United States person who holds this obligation will be
subject to limitations under the United States income tax laws, including the
limitations provided in sections 165(j) and 1287(a) of the Internal Revenue
Code. "
The Bonds and Warrants were to be issued and sold in the manner described
in the related Prospectus dated February __, 1985 (the "Prospectus"), the
Agreement and in various other documents delivered at the Closing today. For
all purposes of this opinion we are relying exclusively on the representations
and covenants of members of the Consortium that the Bonds and Warrants were and
are to be issued and sold as described in the Prospectus, the Agreement and such
other documents. The members of the Consortium have agreed that during
specified periods they will not, and have caused purchasers from them to agree
that they will not, offer, sell or deliver any of the Bonds or Warrants,
directly or indirectly, to or for the account of any U.S. Person (as defined in
the Agreement) or offer, sell or deliver any of the Bonds or Warrants in the
United States of America (including its territories and possessions).
Definitive Bonds and Warrants are not deliverable to or for the account of any
person until after the expiration of a 90 day period after the Closing. In
addition, we have relied on the letter to us from First Chicago S.A. dated
February __, 1985, and assume for purposes of this opinion that any "when-
issued" market developed prior to June 24, 1985, will have the characteristics
therein described.
This opinion is furnished to you pursuant to Article IV(1)(H) of the
Agreement. Terms not otherwise defined herein shall have the meanings set forth
in the Agreement.
In connection with this opinion we have examined the Company's Restated
Articles of Incorporation, its by-laws, the resolutions of its Board of
Directors adopted on February 8, 1985, definitive forms of the Agreement,
Warrant Agreement, Prospectus, certificates of public officials and such other
documents as were delivered at today's Closing or which we have deemed otherwise
pertinent to this opinion. We have assumed the genuineness of all documents
purporting to be originals, the conformity to the originals of all documents
purporting to be copies and the authenticity and authority of all signatures and
signatories not known to us. We have assumed that each of the Agreement and the
Warrant Agreement constitutes the valid and binding obligation of each party
thereto other than the Company. As to all factual matters we have relied on the
representations and undertakings of the parties as set forth in the Agreement,
Warrant Agreement, Prospectus and the certificates and other documents delivered
at today's Closing.
<PAGE>
Dennison Manufacturing Company
First Chicago S.A.
March ___, 1985
Page 3
The opinions set forth below are limited to such matters as may be governed
by the laws of the Commonwealth of Massachusetts and the federal laws of the
United States of America. As to all matters governed by Swiss law you and we
are relying exclusively on the opinion of von Erlach & Partners delivered to you
today, and as to all matters governed by the laws of the State of Nevada, you
and we are relying exclusively on the opinion of Woodburn, Wedge, Blakey and
Jeppson, also delivered to you today.
As used in this opinion, the qualifying phrase "to the best of our
knowledge" means that nothing has come to our attention in the course of
performing legal services for the Company in connection with this offering or in
connection with the referenced matter; we have undertaken no special review or
investigation in connection with rendering this opinion with respect to any
matter so qualified.
Based upon and subject to the foregoing, we are of the opinion that:
1. The Company is a corporation duly organized, validly existing and in
good standing under the laws of Nevada and has the corporate power and authority
to own its property and assets and to conduct the business or businesses in
which it is engaged as described in the Prospectus.
2. The Agreement, the Warrant Agreement, the definitive Bonds, the Global
Bond, the definitive Warrants and the Global Warrant have been duly and validly
authorized by the Company; the Agreement, the Warrant Agreement, the Global
Bond, and the Global Warrant have been duly executed and delivered by the
Company and are, and the definitive Bonds and definitive Warrants, when executed
and delivered by the authorized officers of the Company, will be, valid and
binding instruments enforceable against the Company in accordance with their
terms, except insofar as such enforceability may be limited by applicable
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
by general principles limiting the availability of equitable remedies.
3. The shares of Common Stock issuable upon the exercise of the Warrants
have been duly and validly authorized and reserved for issuance upon such
exercise and, when issued upon such exercise in accordance with the terms of the
Warrant Agreement, will have been duly and validly issued and will be fully paid
and nonassessable.
4. The holders of the outstanding shares of Common Stock have no
preemptive or other rights to subscribe for or purchase the Bonds, the Warrants
or the shares of Common Stock issuable upon exercise of the Warrants.
5. To the best of our knowledge, there is no pending or threatened
action, suit or proceeding before any court or governmental agency, authority or
body or any arbitrator involving the Company which in our judgment (relying for
this purpose entirely on the opinions
<PAGE>
Dennison Manufacturing Company
First Chicago S.A.
March ___, 1985
Page 4
of other counsel as to all cases not under our direct control) appears to have a
significant likelihood of a judgment, decree or award having a material adverse
effect on the consolidated financial condition of the Company and its
subsidiaries.
6. Neither the issuance and sale of the Bonds and Warrants in the manner
contemplated by the Agreement, the Warrant Agreement, the Distribution Agreement
and the Prospectus nor the performance of the Agreement, the Warrant Agreement,
the Bonds or the Warrants will conflict with, result in a breach of, or
constitute a default under any Massachusetts or federal United States of America
statute, the By-laws or the Restated Articles of Incorporation of the Company,
or, to the best of our knowledge, the terms of any agreement or instrument known
to us and to which the Company is a party or by which it is bound or of any
order of any court or governmental agency, authority or body or of any
arbitrator having jurisdiction over the Company.
7. No registration of the Bonds or Warrants under the United States
Securities Act of 1933, as amended (the "Securities Act"), no qualification of
an indenture under the United States Trust Indenture Act of 1939, and no
registration of the Company and no filing or similar action under the United
States Investment Company Act of 1940, are required for the offer and sale of
the Bonds and Warrants in the manner contemplated by the Agreement, the Warrant
Agreement and the other documents delivered at today's Closing, since such
manner is reasonably designed to ensure that the Bonds and Warrants will be sold
(or resold in connection with the original issue thereof) outside of the United
States of America and only to persons who are not U.S. Persons. We express no
opinion, however, as to when and under what circumstances any Bond or Warrant
may be reoffered and resold in the United States of America or to U.S. Persons
and we note that Section 13 of the Warrant Agreement requires the Company to
cause the shares of Common Stock issuable upon exercise of the Warrants to be
registered under the Securities Act. Such shares may not be offered or sold in
the United States of America or to U.S. Persons unless such registration has
been effected or unless an exemption from such registration is at the time
available.
8. In the course of the preparation of the Agreement, the Warrant
Agreement and the Prospectus, we have participated in certain conferences with
certain of the Company's officers, in which representatives of and legal counsel
to First Chicago S.A. also participated. We have relied upon the statements and
opinions of officers of the Company, as to all matters of fact, as to the
materiality of information which was or was not included in the Prospectus.
Referring to our examination of the Agreement, the Warrant Agreement and the
Prospectus, our discussions during the above-mentioned conferences and such
reliance, we hereby confirm to you that to the best of our knowledge, none of
the Agreement, the Warrant Agreement or the Prospectus (other than the financial
statements and other financial and statistical information contained therein as
to which no views are expressed) contains any untrue statement of a material
fact or omits to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. We note, however,
<PAGE>
Dennison Manufacturing Company
First Chicago S.A.
March ___, 1985
Page 5
that in conformity with what we understand to be Swiss practices, the
information relating to the Company contained in the Prospectus is considerably
less, and presented in a form considerably more condensed, than that which would
normally be included in offering materials intended for distribution in the
United States of America or to U.S. Persons.
9. Subject to the discussion of "backup" withholding in paragraph 10
below:
(a) Payments of amounts due on the Bonds, made in Switzerland by the
Company or by any paying agent on its behalf to any United States Alien holder
(as hereinafter defined), will not, under existing law, be subject to any
withholding of tax at source pursuant to the federal laws of the United States
of America ("United States withholding tax") unless such payments are made (i)
to certain affiliates of the Company, (ii) to actual or constructive
shareholders of 10% or more of the total combined voting power of all classes of
stock of the Company or (iii) to banks which acquire the Bonds as an extension
of credit to the Company made pursuant to a loan agreement entered into in the
ordinary course of such bank's trade or business (collectively, "Unqualified
Holders");
(b) income or gain realized by a United States Alien holder (other
than an Unqualified Holder) upon the sale, exchange or redemption of a Bond will
not be subject to United States withholding tax; and
(c) a Bond held by an individual who at the time of such individual's
death is not a citizen or resident of the United States will not be subject to
United States federal estate tax as a result of such individual's death,
provided that such individual is not actually or constructively a 10% (or more)
shareholder of the Company.
10. (a) A 20% "backup" United States withholding tax and information
reporting requirements apply to certain interest, premium (if any) and principal
payments on an obligation, and of proceeds of the sale of an obligation before
maturity, payable to certain noncorporate United States holders thereof.
However, under current United States Treasury Department regulations, "backup"
United States withholding tax and information reporting will not apply to
payments on the Bonds made outside the United States by the Company or any
paying agent thereof to a United States Alien holder (other than an Unqualified
Holder). Payment will not be considered to be made outside the United States if
paid to a United States address, whether by mail or electronic transfer.
(b) In addition to "backup" United States withholding tax and
information reporting as applied to the Company and its paying agents, existing
United States Treasury Department regulations relating to "backup" United States
withholding tax and information reporting apply in certain circumstances to
custodians, nominees and other agents of the owners of obligations such as the
Bonds.
<PAGE>
Dennison Manufacturing Company
First Chicago S.A.
March ___, 1985
Page 6
(i) If a payment on a Bond is collected by a foreign (that is,
non-United States) office of a foreign custodian, foreign nominee or other
foreign agent acting on behalf of the beneficial owner of the Bond, or if
the foreign office of a foreign "broker" (as defined in applicable United
States Treasury Department regulations) pays the proceeds of the sale of a
Bond to the seller thereof, "backup" United States withholding tax and
information reporting will not apply to such payments.
(ii) However, if such nominee, custodian, agent or broker is a
United States person or a controlled foreign corporation under United
States tax law, or derives 50% or more or its gross income for certain
periods from the conduct of a trade or business in the United States, such
custodian, nominee, agent or broker will under current law be subject to
information reporting unless it has documentary evidence in its records
that the beneficial owner of the Bond is not a U.S. person for United
States tax purposes and certain conditions are met, or the beneficial owner
otherwise establishes an exemption. Such custodian, nominee, agent or
broker will not be subject to backup withholding under current U.S. law,
although the United States Treasury Department has indicated that the
possible application of "backup" United States withholding tax in this
context is still under consideration.
(iii) If a payment on a Bond is collected by the United States
office of a custodian, nominee or agent, or if a United States office of a
broker pays the proceeds of a sale of a Bond to the seller thereof,
"backup" United States withholding tax and information reporting will apply
unless the beneficial owner certifies its non-United States status under
penalties of perjury or otherwise establishes an exemption.
These backup withholding and information reporting rules are under review by the
United States Treasury Department, and their application to the Bonds could be
changed by future regulations.
11. For purposes of the paragraphs 9 and 10 above, the term "United States
Alien" means a person who, as to the United States of America (including its
territories and possessions), is a foreign corporation, a nonresident alien
individual, a nonresident alien fiduciary of a foreign estate or trust, or a
foreign partnership, one or more of the members of which is a foreign
corporation, a nonresident alien individual or a nonresident alien fiduciary of
a foreign estate or trust.
Yours very truly,
BINGHAM, DANA & GOULD
<PAGE>
ANNEX D
[Letterhead of Woodburn, Wedge, Blakey and Jeppson]
March , 1985
Dennison Manufacturing Company
275 Wyman Street
Waltham, MA 02254
First Chicago S.A.
65 Rue du Rhone
1211-Geneva 3
Switzerland
Gentlemen:
Re: Issue of SFr_________ Principal Amount of
% Bearer Bonds and Related Warrants
-----------------------------------------
We have acted as United States counsel for Dennison Manufacturing Company,
a Nevada corporation (the "Company"), in connection with the issuance and sale
by the Company of Swiss francs ___________ aggregate principal amount of the
Company's ___% Bonds (the "Bonds") pursuant to the Bond and Warrant Issue
Agreement dated February __, 1985 (the "Agreement") among First Chicago S.A. as
representative of the members of the Consortium listed therein (the
"Consortium"), the members of the Consortium and the Company and __________
bearer warrants (the "Warrants") to purchase an aggregate of _____ shares of the
Company's U.S. $1 par value common stock (the "Common Stock") pursuant to the
Warrant Agreement dated February __, 1985 (the "Warrant Agreement") between the
Company and First Chicago S.A. The Bonds, which will be issued solely as bearer
bonds in denominations of Swiss francs 5,000 and Swiss francs 100,000 and each
of which initially will have ______ Warrants attached (if in the SFr 5,000
denomination) and ______ Warrants attached (if in the SFr 100,000 denomination),
were sold by the members of the Consortium in a public offering in Switzerland.
A Global Bond in the principal amount of Swiss francs ____ (the "Global Bond")
and a Global Warrant Certificate representing _____ Warrants (the "Global
Warrant") are being issued by the Company to First Chicago S.A. at the Closing
today, and definitive Bonds and Warrants are to be made available to the holders
of interests therein on or after June __, 1985.
The Bonds and the Agreement are stated to be governed by Swiss law. The
Warrant Agreement and the Warrants are stated to be governed by the laws of the
Commonwealth of Massachusetts.
<PAGE>
Dennison Manufacturing Company
First Chicago S.A.
March ___, 1985
Page 2
This opinion is furnished to you pursuant to Article IV(1)(H) of the
Agreement. Terms not otherwise defined herein shall have the meanings set forth
in the Agreement.
In connection with this opinion we have examined the Company's Restated
Articles of Incorporation, its by-laws, the resolutions (the "Resolutions") of
its Board of Directors adopted on February 8, 1985, definitive forms of the
Agreement, Warrant Agreement, Prospectus, certificates of public officials and
such other documents which we have deemed otherwise pertinent to this opinion.
We have assumed the genuineness of all documents purporting to be originals, the
conformity to the originals of all documents purporting to be copies and the
authenticity and authority of all signatures and signatories not known to us.
We have assumed that each of the Agreement and the Warrant Agreement constitutes
the valid and binding obligation of each party thereto other than the Company.
As to all factual matters we have relied on the representations and undertakings
of the parties as set forth in the Agreement, Warrant Agreement and Prospectus.
We, however, did not attend today's Closing in Switzerland or observe the
Company's execution of any document.
The opinions set forth below are limited to such matters as may be governed
by the laws of the State of Nevada. As to all matters governed by Swiss law you
and we are relying exclusively on the opinion of von Erlach & Partners delivered
to you today, and as to all matters governed by the laws of the Commonwealth of
Massachusetts and the federal laws of the United States of America, you and we
are relying exclusively on the opinion of Bingham, Dana & Gould, also delivered
to you today.
Based upon and subject to the foregoing, we are of the opinion that:
1. The Company is a corporation duly organized, validly existing and in
good standing under the laws of Nevada and has the corporate power and authority
to own its property and assets and to conduct the business or businesses in
which it is engaged as described in the Prospectus.
2. The Agreement, the Warrant Agreement, the definitive Bonds, the Global
Bond, the definitive Warrants and the Global Warrant have been duly and validly
authorized by the Company; the Agreement, the Warrant Agreement, the Global
Bond, and the Global Warrant will have been duly executed and delivered by the
Company when executed and delivered by any of the officers referred to in the
Resolutions and are, and the definitive Bonds and the definitive Warrants, when
so executed and delivered by the Company, will be, valid and binding instruments
enforceable against the Company in accordance with their terms, except insofar
as such enforceability may be limited by applicable bankruptcy, insolvency or
similar laws affecting creditors' rights generally and by general principles
limiting the availability of equitable remedies.
<PAGE>
Dennison Manufacturing Company
First Chicago S.A.
March ___, 1985
Page 3
3. The shares of Common Stock issuable upon the exercise of the Warrants
have been duly and validly authorized and reserved for issuance upon such
exercise and, when issued upon such exercise in accordance with the terms of the
Warrant Agreement will have been duly and validly issued and will be fully paid
and nonassessable.
4. The holders of the outstanding shares of Common Stock have no
preemptive or other rights to subscribe for or purchase the Bonds, the Warrants
or the shares of Common Stock issuable upon exercise of the Warrants.
Yours very truly,
WOODBURN, WEDGE, BLAKEY AND
JEPPSON
<PAGE>
[Letterhead of WHITE & CASE, New York, New York]
ANNEX E
March __, 1985
re Dennison Manufacturing Company
% Bonds 1985-19 with Warrants
-------------------------------
First Chicago S.A.
65, Rue du Rhone
1211 Geneva, 3
Switzerland
Dear Sirs:
We have acted as United States counsel for you and other members of
the purchasing consortium in connection with (a) the Bond and Warrant Issue
Agreement (the "Bond and Warrant Issue Agreement") dated February __, 1985 among
Dennison Manu facturing Company (the "Company") on the one hand and you and the
other members of such consortium on the other hand, (b) the Warrant Agreement
(the "Warrant Agreement") dated February __, 1985 between the Company and you,
as Warrant Agent, and (c) the sale by the Company on this date pursuant to the
Bond and Warrant Agreement of Swiss francs __________ principal of its ____%
Bonds 1985-19__ (the "Bonds"), with __________ Warrants expiring February __,
19__ (the "Warrants"), issued under the Warrant Agreement, to purchase ____
shares of the Company's Common Stock, par value $1 per share.
In this connection we have examined such certificates and documents
and made such investigations and analyses as we have considered relevant and
necessary as a basis for our opinions hereinafter set forth. We have relied
upon the representations and warranties of the Company set forth in the Bond and
Warrant Issue Agreement with respect to the accuracy of material factual matters
contained therein. We have assumed the genuiness of all signatures and the
authenticity of all documents submitted as originals and the conformity to
original documents of all documents submitted as photo-reproduced copies.
Insofar as the laws of the Commonwealth of Massachusetts and the State of Nevada
are involved in the conclusions set forth in paragraph 2 below, we have relied
upon the opinions submitted to you by Messrs. Bingham, Dana & Gould and Messrs.
Woodburn, Wedge, Blakey and Jeppson, respectively, and as to matters of Swiss
law involved therein, we have relied upon the opinion submitted to you by
Messrs. von Ehrlach and Partners. With respect to the opinion set forth in
paragraph 1 below, we point out that, although not all of the requirements of
the several no-action letters issued by the Securities and Exchange
<PAGE>
2
Commission (the "SEC"), interpreting Release No. 4708 (relating to foreign
offerings) of the SEC have been met, we believe that the totality of the
circumstances, covenants and documentation relating to the issuance and
distribution of the Bonds and Warrants, the legend appearing on the Bonds, the
income tax disadvantages inhering in ownership of Bonds by United States persons
and the fact that the Bonds and Warrants are not separately transferable for
ninety-five days support the opinion set forth in such paragraph.
Based upon the foregoing, we are of the opinion that:
1. No registration of the Bonds or Warrants under the Securities Act
of 1933, no qualification of an indenture under the Trust Indenture Act of 1939,
no registration of the Company and no filing or other similar action under the
Investment Company Act of 1940 are required for the offer and sale of the Bonds
or Warrants (in both temporary global or definitive form), in the manner
contemplated by the applicable preliminary prospectus dated February 13, 1985,
the Bond and Warrant Issue Agreement and the Warrant Agreement. We express no
opinion, however, as to when and under what circumstances the Bonds or Warrants
may be reoffered or resold in the United States or to residents or nationals
thereof.
2. The Bond and Warrant Issue Agreement, the Warrant Agreement, the
Bonds temporary in global and definitive form, and the Warrants in temporary
global and definitive form, have been duly and validly authorized by the
Company, and assuming due execution and delivery thereof by authorized officers
of the Company, constitute (or in the case of the Bonds and Warrants hereafter
issuable in definitive form, will constitute) valid and binding instruments of
the Company in accordance with their respective terms.
Very truly yours,
<PAGE>
[Letterhead of von ERLACH & PARTNER, Zurich]
ANNEX F
First Chicago S.A.
6, Place des Eaux-Vives
P.O. Box
1211 Geneva 6
Zurich, March 21, 1985
Dear Sirs:
You have asked us to render an opinion in connection with the Issue of Bonds
1985-1997 with Warrants in the amount of Sfr. 100,000,000.-- by Dennison
Manufacturing Company, Framingham, Massachusetts, U.S.A.
For purposes of our opinion we have examined executed copies of the following
documents (hereinafter called the "Documents"):
- -- the Bond and Warrant Issue Agreement among Dennison Manufacturing Company
of the first part and First Chicago S.A. (Lead-Manager) and several
financial institutions of the second part, dated February 27, 1985
(hereinafter the "Bond and Warrant Issue Agreement");
- -- Annex B to the Bond and Warrant Issue Agreement (hereinafter the "Terms of
the Bonds");
- -- Annex G to the Bond and Warrant Issue Agreement (hereinafter the "Global
Bond Certificate");
- -- the Paying Agency Agreement among Dennison Manufacturing Company of the
first part and Swiss Volksbank and several financial institutions of the
second part, dated February 27, 1985 (hereinafter the "Paying Agency
Agreement").
Terms defined in any of the Documents shall have the same meanings when used
herein.
<PAGE>
-2-
Our opinion is limited to Swiss law, as presently in force. It does not cover
Swiss cantonal laws or regulations which may apply to anyone of the Banks at
their respective domiciles. Moreover, we do not express an opinion on matters of
the laws of the United States of America or any State thereof or of any other
jurisdiction insofar as such laws may affect the rights and obligations of the
respective parties under the Documents. We have assumed that there is nothing in
the laws of the United States of America or any State thereof and of any other
jurisdiction which would influence or impair our opinion.
We assume that the Documents have been validly executed by, and that the
transactions envisaged in the Documents are within the legal powers of Dennison
Manufacturing Company (hereinafter the "Company").
Our opinion expressed below does not mean or imply that the agreements contained
in the Documents will be enforced in all circumstances or that remedies will be
available in any case. In particular we would observe that:
(i) enforcement may be limited by bankruptcy, insolvency, liquidation, re-
organization and other laws of general application relating to or
affecting the rights of creditors;
(ii) enforcement may be limited by general principles of good faith (Art. 2 of
the Swiss Civil Code);
(iii) claims may become barred by the statute of limitations or may be or
become subject to defenses of set-off or counter-claim.
We do not express an opinion on whether the Bonds and Warrants issued pursuant
to the terms of the Bond and Warrant Agreement will be listed on the Swiss Stock
Exchanges.
<PAGE>
-3-
Subject to the assumptions and limitations set forth above, we are of the
opinion that:
1. The Bond and Warrant Issue Agreement and the Paying Agency Agreement are
valid and create legally binding obligations of the Company.
2. The Global Bond Certificate constitutes a valid security, which embodies
binding obligations of the Company as set forth in its terms.
3. The definitive Bonds in the form of Annex B to the Bond and Warrant Issue
Agreement, when duly executed (in facsimile), issued and delivered pursuant
to the Bond and Warrant Issue Agreement against cancellation of the Global
Bond Certifi cate, will constitute valid securities, which embody binding
obligations of the Company as set forth in their terms.
4. The making and execution of the Bond and Warrant Issue Agreement and the
Paying Agency Agreement and the issue of the Bonds and the Warrants
thereunder do not and will not violate any present laws or regulations of
Switzerland. Other than the consent from the Swiss National Bank dated
February 12, 1985 no authorization or approval of, or filing with, any
court or governmental or regulatory body of Switzerland is required in
connection with the execution and delivery of the Bond and Warrant Issue
Agreement and the Paying Agency Agreement.
5. Under applicable Swiss law the consent of the Company to the jurisdiction
of Swiss courts contained in the Bond and Warrant Issue Agreement and in
the Paying Agency Agreement are valid and binding and not subject to
revocation.
6. In connection with the transactions contemplated by the Documents the
following Swiss stamp taxes are or will be levied:
<PAGE>
-4-
(i) Upon purchase of the Bonds by the Consortium, the Swiss Federal and
Geneva Cantonal Tax on Negotiation of Securities of 0,315 per cent,
calculated on the proceeds of such Bonds minus the management fee
and the underwriting and placement commissions;
(ii) Upon resale of the Bonds by the Consortium to subscribers, the Swiss
Federal Tax on Negotiations of Securities of 0,3 per cent calculated
on the proceeds of the sale of the Bonds;
(iii) Upon exercise of the Warrants, the Swiss Federal Tax on Negotiation
of Securities of 0,3 per cent calculated on the Exercise Price.
Under Swiss tax laws as presently in force no further taxes are levied
(except for income, capital and/or net worth taxes applicable to the
holders of Bonds and Warrants) in connection with any of the transactions
contemplated by the Documents; provided, however, that we do not express an
opinion on tax consequences which the trading in Bonds, Warrants or Shares
purchasable through Warrants after the issuance thereof may have for the
parties involved.
Yours faithfully,
Hans Wille Beat von Rechenberg
<PAGE>
ANNEX G
G L O B A L B O N D C E R T I F I C A T E
---------------------------------------------
This Global Bond Certificate has not been and will not be registered under the
Securities Act of 1933 of the United States of America.
Any United States Person who holds this obligation will be subject to
limitations under the United States income tax laws, including the limitations
provided in Sections 165 (j) and 1287 (a) of the Internal Revenue Code. For the
purposes of this Global Bond Certificate a "United States Person" includes any
national or resident of the United States of America (including any corporation,
partnership or other entity organized under the laws thereof or any political
subdivision thereof and any estate or trust which is subject to United States
federal income taxation regardless of the source of its income.
DENNISON MANUFACTURING COMPANY
(a statutory corporation of the
State of Nevada, U.S.A.)
5 1/8% Swiss Franc Bonds 1985-1997
-----
of Swiss Francs 100'000'000.--
due March 21, 1997
BOND OF SWISS FRANCS 100'000'000.--
-----------------------------------
Dennison Manufacturing Company, Waltham, Massachusetts, U.S.A., hereby promises
to pay to the holder of this Global Bond Certificate on March 21, 1997 (or on
such earlier date as the principal sum hereinafter mentioned may become
repayable in accordance with the terms and conditions of the Bond and Warrant
Issue Agreement hereinafter mentioned) upon presentation and surrender of this
Bond at the offices of First Chicago S.A., 6, place des Eaux-Vives, 1207 Geneva,
the aggregate principal amount of Swiss Francs 100'000'000.--(one hundred
million Swiss Francs), and interest thereon at 5 1/8% per annum subject to and
in accordance with the terms and conditions of a Bond and Warrant Issue
Agreement dated as of February 27, 1985, between Dennison Manufacturing Company,
Framingham, Massachusetts, U.S.A. of the first part and First Chicago S.A.,
Nordfinanz-Bank Zurich, Kredietbank (Suisse) S.A., Clariden Bank, Lloyds Bank
International Ltd., Amro Banque et Finance, Armand von Ernst & Cie AG, Banco di
Roma per la Svissera, Banque Generale Du Luxembourg (Suisse) S.A.,
<PAGE>
EXHIBIT 4.4
SUPPLEMENTAL WARRANT AGREEMENT
SUPPLEMENTAL WARRANT AGREEMENT, dated as of November 28, 1990, between
Dennison Manufacturing Company, a Nevada corporation (the "Company"), and First
Chicago S.A., a company limited by shares incorporated under the laws of
Switzerland, as Warrant Agent (the "Warrant Agent").
WHEREAS, the Company and the Warrant Agent are parties to a Warrant
Agreement (the "Agreement") dated as of February 27, 1985, pursuant to which
Agreement the Company issued certain Warrants (the "Warrants") to purchase
shares of the Company's Common Stock, $1.00 par value per share (the "Company
Common Stock");
WHEREAS, the Company and Avery Dennison Corporation ("Avery
Dennison"), formerly named Avery International Corporation, are parties to an
Agreement and Plan of Reorganization dated as of May 24, 1990 (the
"Reorganization Agreement") which provided, among other things, for the merger
of a wholly-owned subsidiary of Avery Dennison with and into the Company (the
"Merger");
WHEREAS, pursuant to the Merger, which occurred on October 16, 1990,
each outstanding share of Company Common Stock was converted into 1.12 shares of
the Common Stock, $1.00 par value per share, of Avery Dennison (including 1.12
preferred stock purchase rights of Avery Dennison) (collectively, the "Avery
Dennison Common Stock");
WHEREAS, Section 16(b) of the Warrant Agreement requires the Company
to enter into this Supplemental Warrant Agreement setting forth the right of
holders of Warrants to receive, upon exercise of the Warrants, Avery Dennison
Common Stock in lieu of Company Common Stock from and after the effective time
of the Merger;
NOW, THEREFORE, in consideration of the premises contained herein, the
Company covenants and agrees with the Warrant Agent for the equal and
proportionate benefit of the respective holders from time to time of the
Warrants as follows:
SECTION 1. Receipt of Avery Dennison Common Stock in Lieu of Company
---------------------------------------------------------
Common Stock. Each holder of a Warrant shall have the right, from and after the
- ------------
date hereof, until the Expiration Date (as defined in the Warrant Agreement), to
receive, upon exercise of such Warrant, in lieu of the five shares of Company
Common Stock previously deliverable upon such exercise, 5.6 shares of Avery
Dennison Common Stock (including 5.6 preferred stock purchase rights).
<PAGE>
SECTION 2. Exercise Price. From and after the date hereof, the
--------------
Exercise Price (within the meaning of the Agreement) under the Warrants shall be
80.35 Swiss francs for each share of Avery Dennison Common Stock issuable upon
the exercise thereof.
SECTION 3. Adjustments. From and after the date hereof, the Exercise
-----------
Price and the number and kind of securities purchasable upon the exercise of
each Warrant shall be subject to adjustment from time to time upon the
occurrence of the events enumerated in Section 14 of the Agreement, as fully as
if any action taken by Avery Dennison after the date hereof with respect to
Avery Dennison Common Stock had been taken with respect to Company Common Stock
under the terms of such Section 14.
SECTION 4. Fractional Shares. The Company shall not be required to
-----------------
cause the issue of fractions of shares of Avery Dennison Common Stock upon
exercise of the Warrants or to distribute certificates which evidence fractional
shares. In lieu of fractional shares, there shall be paid to the Warrant Agent
in favor of the holders of Warrant Certificates (as defined in the Agreement) at
the time such Warrant Certificates are exercised an amount in cash in Swiss
francs calculated in accordance with the terms of Section 15 of the Agreement;
provided, however, that the calculation of such amount shall be based upon the
current market price per share of Avery Dennison Common Stock rather than the
current market price per share of Company Common Stock. For purposes of the
foregoing, the current market price per share of Avery Dennison Common Stock
shall be determined by averaging the daily Closing Prices of Avery Dennison
Common Stock for the ten consecutive Trading Days preceding the date of
exercise, in accordance with Section 14(d) of the Agreement, and shall be
translated to Swiss francs as provided in Section 15 of the Agreement.
SECTION 5. Reservation of Shares. For the purpose of enabling it to
---------------------
satisfy any obligation to deliver Avery Dennison Common Stock upon exercise of
Warrants, the Company represents that Avery Dennison will at all times through
the close of business on the Expiration Date, reserve and keep available, free
from preemptive rights and out of its aggregate authorized but unissued or
treasury Common Stock, the full number of shares of Avery Dennison Common Stock
deliverable upon the exercise of all outstanding Warrants, and Avery Dennison's
common stock transfer agent shall be irrevocably authorized and directed at all
times to honor requisitions made by the Warrant Agent pursuant to Section 8 of
the Agreement. The Company will keep a copy of the Agreement and this
Supplemental Warrant Agreement on file with such transfer agent and with every
transfer agent for any shares of Avery Dennison's capital stock issuable upon
the exercise of Warrants pursuant to Section 14 of the Agreement. The Warrant
Agent is hereby irrevocably authorized to requisition from time
2
<PAGE>
to time from such transfer agent stock certificates issuable upon exercise of
outstanding Warrants, and the Company will supply such transfer agent with duly
executed stock certificates for such purpose.
Before taking any action which would cause an adjustment pursuant to
Section 14 of the Agreement reducing the Exercise Price below the then par value
(if any) of the shares of Avery Dennison Common Stock issuable upon exercise of
the Warrants, the Company will take, or will cause Avery Dennison to take, any
corporate action which may, in the opinion of its counsel, be necessary in order
that Avery Dennison may validly and legally issue fully paid and nonassessable
shares of Avery Dennison Common Stock at the Exercise Price as so adjusted.
The Company covenants that all shares of Avery Dennison Common Stock
issued upon exercise of the Warrants will, upon issuance in accordance with the
terms of the Agreement and this Supplemental Warrant Agreement, be fully paid
and nonassessable and free from all prescriptive rights and taxes, liens,
charges and security interests created by or imposed upon the Company or Avery
Dennison with respect to the issuance and holding thereof.
SECTION 6. Expenses. The Company agrees to reimburse the Warrant
--------
Agent for all costs and expenses reasonably incurred by the Warrant Agent in
connection with the execution and delivery of this Supplemental Warrant
Agreement, including, without limitation, fees and expenses of counsel and costs
incurred in connection with the publication of notice to holders of Warrants in
accordance with Sections 14(h) and 16(e) of the Agreement. All such costs and
expenses shall be reimbursed promptly by the Company when (i) ascertained by the
Warrant Agent and (ii) itemized in a notice from the Warrant Agent to the
Company.
SECTION 7. Warrant Agreement to Remain in Full Force and Effect.
----------------------------------------------------
Except as modified or supplemented by this Supplemental Warrant Agreement, the
Agreement shall continue to be the binding obligation of the Company and the
Warrant Agent, and shall remain in full force and effect, from and after the
date hereof.
3
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, as of the day and year first above written.
DENNISON MANUFACTURING COMPANY
By /s/ Wayne H. Smith
-------------------------------
Title: Vice President
By /s/ Robert G. van Schoonenberg
-------------------------------
Title: Vice President
FIRST CHICAGO S.A.
as Warrant Agent
By /s/ [Signature]
-------------------------------
Title:
4
<PAGE>
EXHIBIT 5
[LETTERHEAD OF LATHAM & WATKINS]
January 3, 1997
Avery Dennison Corporation
- --------------------------
150 North Orange Grove Boulevard
Pasadena, California 91103
RE: COMMON STOCK, $1.00 PAR VALUE, AVERY DENNISON CORPORATION
Ladies/Gentlemen:
At your request, we have examined the Registration Statement to be
filed on Form S-3 (the "Registration Statement"), which you have filed with the
Securities and Exchange Commission in connection with the registration under the
Securities Act of 1933, as amended, of 767,200 shares of your Common Stock,
$1.00 par value (the "Shares"), to be issued and sold by you as described in the
Registration Statement. We are familiar with the proceedings undertaken by you
in connection with the authorization, issuance and sale of the Shares.
Additionally, we have examined such questions of law and fact as we have
considered necessary or appropriate for purposes of this opinion.
Based upon the foregoing, we are of the opinion that the Shares have
been duly authorized, and, upon issuance and delivery and payment therefor as
contemplated by the Registration Statement, will be validly issued, fully paid
and nonassessable.
We consent to your filing this opinion as an exhibit to the
Registration Statement and to the reference to our firm contained in the
Prospectus included therein.
Very truly yours,
/s/ LATHAM & WATKINS
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement
on Form S-3 of our report, which includes an explanatory paragraph regarding the
Company's adoption of the provisions of the Financial Accounting Standards
Board's Statement of Financial Accounting Standards ("SFAS") No. 106,
"Employer's Accounting for Postretirement Benefits Other Than Pensions", SFAS
No. 109, "Accounting for Income Taxes" and SFAS No. 112, "Employers' Accounting
for Postemployment Benefits" during 1993, dated January 30, 1996, appearing on
page 53 of the Avery Dennison 1995 Annual Report to Shareholders and
incorporated by reference in the Annual Report on Form 10-K of Avery Dennison
Corporation for the year ended December 30, 1995, on our audits of the
consolidated financial statements of Avery Dennison Corporation; and of our
report dated January 30, 1996, appearing in the Annual Report on Form 10-K of
Avery Dennison Corporation for the year ended December 30, 1995, on our audits
of the financial statement schedules listed in the index on page S-1 of the Form
10-K. We also consent to the reference to our firm under the caption "Experts."
COOPERS & LYBRAND L.L.P.
Los Angeles, California
January 3, 1997
