As filed with the Securities and Exchange Commission on January 27, 1998
REGISTRATION STATEMENT NO. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
INTERPOOL, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 13-3467669
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification Number)
211 COLLEGE ROAD EAST
PRINCETON, NEW JERSEY 08540
(609) 452-8900
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
MARTIN TUCHMAN
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
INTERPOOL, INC.
211 COLLEGE ROAD EAST
PRINCETON, NEW JERSEY 08540
(609) 452-8900
(Name and address, including zip code, and telephone
number, including area code, of agent for service)
COPIES TO:
Jeffrey S. Lowenthal, Esq. Mark C. Smith, Esq.
Stroock & Stroock & Lavan LLP Skadden, Arps, Slate, Meagher & Flom LLP
180 Maiden Lane 919 Third Avenue
New York, New York 10038 New York, New York 10022
(212) 806-5400 (212) 735-3000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC:
From time to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, 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. / /
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=============================================================================================================================
TITLE OF EACH PROPOSED MAXIMUM PROPOSED MAXIMUM
CLASS OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED(1) PER UNIT(2) PRICE(1)(2) REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities (3) (3) N/A
- -----------------------------------------------------------------------------------------------------------------------------
Preferred Stock (3) (3) N/A
- -----------------------------------------------------------------------------------------------------------------------------
Common Stock (3)(4) (3) N/A
- -----------------------------------------------------------------------------------------------------------------------------
Total $400,000,000 100% $400,000,000 $118,000
=============================================================================================================================
(1) In no event will the aggregate initial offering price of the Debt
Securities, Preferred Stock and Common Stock issued under this registration
statement exceed $400,000,000. If any Debt Securities are issued at an
original issue discount, then additional Debt Securities may be issued so
long as the aggregate original principal amount of all such Debt
Securities, together with the original principal amount of all other
securities registered and offered hereunder, does not exceed $400,000,000.
(2) Estimated solely for purposes of computing the registration fee. The
proposed maximum offering price per unit will be determined from time to
time by the Registrant in connection with the issuance by the Registrant of
the securities registered hereunder.
(3) In addition to any Debt Securities, Preferred Stock or Common Stock that
may be issued directly under this registration statement, there are being
registered hereunder an indeterminate amount of Debt Securities, and an
indeterminate number of shares of Preferred Stock or Common Stock, as may
be issued upon conversion of Debt Securities or Preferred Stock, as the
case may be. No separate consideration will be received for any Debt
Securities, Preferred Stock or Common Stock so issued upon such conversion.
(4) The aggregate amount of Common Stock registered hereunder is limited to
that which is permissible under Rule 415(a)(4) of the Securities Act of
1933, as amended.
</TABLE>
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.
<PAGE>
SUBJECT TO COMPLETION--DATED JANUARY 27, 1998
PROSPECTUS
$400,000,000
INTERPOOL, INC.
PREFERRED STOCK, COMMON STOCK
AND
DEBT SECURITIES
Interpool, Inc. (the "Company") may offer and sell from time to time (the
"Offering"), together or separately, (i) shares of its Preferred Stock, par
value $.001 per share (the "Preferred Stock"), in one or more series, (ii)
shares of its Common Stock, par value $.001 per share (the "Common Stock"),
and/or (iii) its unsecured debt securities (the "Debt Securities"), which may be
either senior debt securities ("Senior Securities") or subordinated debt
securities ("Subordinated Securities"), consisting of unsecured debentures,
notes and/or other evidences of its indebtedness in one or more series, at
prices and on terms to be determined at the time or times of sale. The Debt
Securities, Preferred Stock and Common Stock are referred to herein collectively
as the "Securities." The aggregate initial offering price of the Securities will
not exceed $400,000,000 (or its equivalent if the Debt Securities are
denominated in one or more foreign currencies, currency units or composite
currencies).
For each offering of Securities for which this Prospectus is being
delivered, there will be an accompanying Prospectus Supplement (each a
"Prospectus Supplement") that sets forth, as applicable, (i) the specific
designation, aggregate principal amount, denominations, currency of payment,
maturity, premium, if any, interest rate, if any (which may be fixed or
variable), or method of calculation thereof, time of payment of any interest,
terms for any redemption at the option of the Company or the holder, terms for
any sinking fund payments, subordination provisions, if any, any listing on a
national securities exchange, the form of the Debt Securities (which may be in
registered or permanent global form), the initial public offering price and any
other terms in connection with the offering and sale of the Debt Securities, if
any, in respect of which this Prospectus is being delivered; (ii) the specific
series designation, number of shares, the stated value and liquidation
preference per share, initial public offering price, dividend rate (or method of
calculation), dates on which dividends will be payable and dates from which
dividends will accrue, optional or mandatory redemption or sinking fund
provisions, any conversion or exchange rights, any listing of the Preferred
Stock on a national securities exchange, any voting rights and any other terms
in connection with the offer and sale of the Preferred Stock, if any, in respect
of which this Prospectus is being delivered; and (iii) the number of shares and
initial public offering price of the Common Stock, if any, in respect of which
this Prospectus is being delivered. The Prospectus Supplement will also contain
information, as applicable, about material United States Federal income tax
considerations relating to the Securities in respect of which this Prospectus is
being delivered. See "Description of Debt Securities," "Description of Preferred
Stock" and "Description of Common Stock."
The Senior Securities of the Company will rank equally with all other
unsubordinated and unsecured indebtedness of the Company. The Subordinated
Securities will be subordinated to all existing and future Senior Indebtedness
(as defined) of the Company.
The Company's Common Stock is listed on the New York Stock Exchange under
the symbol "IPX." Any Common Stock offered will be listed, subject to notice of
issuance, on such exchange.
The Securities may be sold to or through underwriters, and also may be sold
directly by the Company to other purchasers or through agents. See "Plan of
Distribution." The names of and the principal amounts to be purchased by any
underwriters or sold through any agents and the compensation of such
underwriters or agents will be set forth in an accompanying Prospectus
Supplement.
____________________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
____________________________
The date of this Prospectus is _____________________.
<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"). Reports, proxy statements
and other information filed by the Company with the Commission can be inspected
and copied at the public reference facilities maintained by the Commission at
Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549 and at the
Commission's regional offices located at Seven World Trade Center, New York, New
York 10048, and Suite 1400, Northwestern Atrium Center, 500 West Madison Street,
Chicago, Illinois 60661. Copies of such materials can be obtained from the
Public Reference Section of the Commission at Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. Such materials can also be
inspected at the New York Stock Exchange, 20 Broad Street, New York, New York
10005. The Commission maintains an Internet web site that contains reports,
proxy and information statements and other information regarding registrants
that file electronically with the Commission. The address of that site is
http://www.sec.gov.
The Company has filed with the Commission a Registration Statement on Form
S-3 (together with all amendments, exhibits, annexes and schedules thereto, the
"Registration Statement") pursuant to the Securities Act of 1933, as amended
(the "Securities Act"), and the rules and regulations promulgated thereunder,
with respect to the securities being offered hereby. This Prospectus does not
contain all the information set forth in the Registration Statement, certain
parts of which are omitted in accordance with the rules and regulations of the
Commission. For further information with respect to the Company and the
securities offered hereby, reference is made to the Registration Statement,
including the exhibits filed as a part thereof and otherwise incorporated
therein. Statements made in this Prospectus as to the contents of any contract,
agreement or other document referred to are necessarily summaries of the
material elements of such contract, agreement or document, and with respect to
each contract, agreement or other document filed as an exhibit to the
Registration Statement, reference is made to such exhibit for a more complete
description of the matter involved. Each such statement shall be deemed
qualified in its entirety by such reference. Copies of the Registration
Statement and the exhibits may be inspected, without charge, at the offices of
the Commission, or obtained at prescribed rates from the Public Reference
Section of the Commission at the address set forth above.
____________________________
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed with the Commission by the Company
pursuant to the Exchange Act are incorporated by reference in this Prospectus
and made a part hereof:
(a) the Company's Annual Report on Form 10-K for the year ended December
31, 1996;
(b) the Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1997, June 30, 1997 and September 30, 1997;
(c) the Company's Current Reports on Form 8-K dated July 29, 1997 and July
31, 1997;
(d) the Company's Proxy Statement dated April 17, 1997 in connection with
the Company's Annual Meeting of Stockholders in 1997; and
(e) the description of the Company's Common Stock contained in Amendment
No. 2 to the Company's Registration Statement on Form 8-A as filed with the
Commission on May 4, 1993.
All documents filed by the Company with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date hereof and
prior to the termination of the Offering shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing of such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which is also incorporated or deemed
to be incorporated by reference herein modifies, supersedes or replaces such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to any person to whom this
Prospectus is delivered, upon written or oral request of such person, a copy of
any or all of the documents which have been incorporated by reference in this
Prospectus, other than exhibits to such documents, unless such exhibits are
specifically incorporated by reference into the documents so incorporated. Any
such request should be directed to Interpool, Inc., 211 College Road East,
Princeton, New Jersey, 08540, Attention: Investor Relations. Telephone requests
may be directed to (609) 452-8900.
FORWARD LOOKING STATEMENTS
This Prospectus and the accompanying Prospectus Supplement, including
certain information incorporated by reference herein and therein, contain
certain forward-looking statements within the meaning of the Private Securities
Litigation Reform Act of 1995. These forward-looking statements are subject to
risks and uncertainties that could cause actual results to differ materially
from those contemplated in such forward-looking statements. Prospective
investors are cautioned not to place undue reliance on these forward-looking
statements, which speak only as of the date hereof or thereof. The Company
undertakes no obligation to publicly release any revisions to these
forward-looking statements to reflect events or circumstances after the date
hereof or thereof or to reflect the occurrence of unanticipated events.
<PAGE>
THE COMPANY
Interpool is one of the world's leading lessors of intermodal dry freight
standard containers and is the second largest lessor of intermodal container
chassis in the United States. At September 30, 1997, the Company's container
fleet totaled approximately 360,000 twenty-foot equivalent units ("TEUs"), the
industry standard measure of dimension for containers used in international
trade, and its chassis fleet totaled approximately 61,000 chassis. The Company
leases its containers and chassis to over 200 customers, including nearly all of
the world's 20 largest international container shipping lines.
The efficiencies and cost savings inherent in intermodal transportation of
containerized cargo have facilitated the dramatic growth of international trade.
Intermodal transportation permits movement of cargo in a standard steel
container by means of a combination of ship, rail and truck without unpacking
and repacking of the contents during transit. The world's dry freight standard
container fleet has grown from fewer than .4 million TEUs in 1970 to
approximately 8.7 million TEUs by mid-1996. During the twelve month period
ending in mid-1996 approximately 1.3 million TEUs were produced, of which 0.4
million have been estimated as replacements of older containers. Concurrently
with this growth of the world's container fleet, the domestic chassis fleet has
grown to accommodate the increased container traffic. Leasing companies have
played a significant role in the growth of intermodal transportation, supplying
approximately half of the world's container and chassis requirements.
The Company focuses on leasing dry freight standard containers and
container chassis on a long-term basis in order to achieve high utilization of
its equipment and stable and predictable earnings. From 1991 through 1994, the
combined utilization rate of the Company's container and chassis fleets averaged
at least 90%. At the end of 1995 and 1996, the combined utilization rate of the
Company's container and chassis fleets was approximately 97% and at September
30, 1997 such rate was approximately 98%. Substantially all of the Company's
newly acquired equipment is leased on a long-term basis, and at September 30,
1997 approximately 93% of its total equipment fleet is currently leased on this
basis. The remainder of the Company's equipment was under short-term agreements
to satisfy customers' peak or seasonal requirements, generally at higher rates
than under long-term leases. The Company concentrates on dry freight standard
containers and chassis because such equipment may be more readily remarketed
upon expiration of a lease than specialized equipment. In financing its
equipment acquisitions, the Company generally seeks to meet debt service
requirements from the leasing revenue generated by its equipment.
The Company conducts its container and chassis leasing business through two
subsidiaries, Interpool Limited and Trac Lease, Inc. ("Trac Lease"). Certain
other United States equipment leasing activities are conducted through Interpool
itself.
The Company and its predecessors have been involved in the leasing of
containers and chassis since 1968. The Company leases containers throughout the
world, with particular emphasis on the Pacific Rim. The Company leases chassis
to customers for use in the United States. The Company maintains contact with
its customers through a worldwide network of offices, agents and sales
representatives. The Company believes one of the key factors in its ability to
compete effectively has been the long-standing relationships management has
established with most of the world's large shipping lines. In addition,
Interpool relies on its strong credit rating and low financing costs to maintain
its competitive position.
From time to time the Company considers possible acquisitions of
complementary businesses and asset portfolios.
The Company is a Delaware corporation formed in February 1988 with its
principal executive offices located at 211 College Road East, Princeton, New
Jersey 08540. Its telephone number is (609) 452-8900.
USE OF PROCEEDS
Except as otherwise described in the applicable Prospectus Supplement, the
Company intends to use the net proceeds from the sale of the Securities being
offered hereby for general corporate purposes, which may include the repayment
of secured indebtedness of the Company and/or its subsidiaries, the purchase of
equipment, acquisitions and/or working capital. Pending such use, the net
proceeds of any offering of the Securities offered hereby may be invested
temporarily in investment grade marketable securities.
<PAGE>
RATIOS OF EARNINGS TO FIXED CHARGES AND
EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following table sets forth the ratios of earnings to fixed charges and
earnings to combined fixed charges and preferred stock dividends for the Company
for the periods indicated.
<TABLE>
<CAPTION>
Nine Months
Years Ended December 31, Ended September 30,
_______________________________________________________________________________ _______________________
1992 1992 1993 1994 1995 1996 1996 1997 1997
---- ---- ---- ---- ---- ---- ---- ---- ----
(Pro (Pro (Pro
(Actual) Forma)(1) (Actual) (Actual) (Actual) (Actual) Forma)(2) (Actual) Forma)(2)
Ratio of
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
earnings to 1.8x 1.8x 2.4x 2.2x 1.9x 1.9x 1.7x 2.1x 2.1x
fixed charges (3)....
Ratio of earnings to
combined fixed
charges and 1.8x 1.8x 2.4x 2.2x 1.8x 1.8x 1.7x 2.0x 2.1x
preferred stock
dividends (4).........
- ---------------
(1) The 1992 pro forma ratios give effect to (a) the recapitalization of Trac
Lease (effected in July 1992), and (b) the acquisition of Trac Lease and
the minority interest in Interpool Limited (effected in 1993), as if these
transactions had been consummated as of January 1, 1992.
(2) The pro forma ratios give effect to the issuance by the Company of $75
million principal amount of its 9 7/8% Junior Subordinated Deferrable
Interest Debentures ("Junior Subordinated Debentures") to Interpool Capital
Trust in January 1997 and to the use by the Company of approximately $52.9
million of the net proceeds therefrom to retire shares of Preferred Stock,
as if such transactions had occurred on the first day of the period
indicated; the remaining net proceeds from the sale of the Junior
Subordinated Debentures of approximately $20.4 million are treated as if
invested in interest bearing accounts earning 5% per annum.
(3) For the purpose of calculating the ratio of earnings to fixed charges, (i)
earnings consist of income before provision for income taxes, extraordinary
items and fixed charges and (ii) fixed charges consist of interest expense
and 75% of rental payments under operating leases (an amount estimated by
management to be the interest component of such rentals). Interest for the
nine months ended September 30, 1997 included approximately $5.0 million
($5.6 million on a pro forma basis) of interest payments relating to the
Company's Junior Subordinated Debentures. Excluding such interest, the
ratio of earnings to fixed charges for such nine-month period would have
been 2.3x (2.3x on a pro forma basis).
(4) For the purpose of calculating the ratio of earnings to combined fixed
charges and preferred stock dividends, (i) earnings consist of income
before provision for income taxes, extraordinary items and fixed charges
and (ii) fixed charges consist of interest expense and 75% of rental
payments under operating leases (an amount estimated by management to be
the interest component of such rentals). No preferred stock dividends were
paid prior to 1995. Interest for the nine months ended September 30, 1997
included approximately $5.0 million ($5.6 million on a pro forma basis) of
interest payments relating to the Company's Junior Subordinated Debentures.
Excluding such interest, the ratio of earnings to fixed charges and
preferred stock dividends for such nine-month period would have been 2.2x
(2.3x on a pro forma basis).
</TABLE>
DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general terms and provisions
of the Debt Securities of the Company to which any Prospectus Supplement may
relate. The particular terms of the Debt Securities offered by any Prospectus
Supplement and the extent, if any, to which such general provisions may apply to
the Debt Securities so offered will be described in the Prospectus Supplement
relating to such Debt Securities.
The Debt Securities constitute either Senior Securities or Subordinated
Securities. The Debt Securities will be issued under an Indenture (the
"Indenture"), to be entered into by the Company and a trustee (the "Trustee") to
be designated prior to the issuance of any such Debt Securities, the form of
which Indenture is filed as an exhibit to this Registration Statement.
Information regarding the Trustee under the Indenture will be included in any
Prospectus Supplement relating to any series of Debt Securities. The following
summary of certain provisions of the Indenture does not purport to be complete
and is subject to, and qualified in its entirety by reference to, all the
provisions of the Indenture, including the definitions therein of certain terms.
Wherever particular provisions of defined terms of the Indenture are referred
to, such provisions or defined terms are incorporated herein by reference.
Certain capitalized terms used but not defined herein are defined in the
Indenture.
GENERAL
The Indenture provides that unsecured Debt Securities of the Company, not
limited in aggregate principal amount, may be issued in one or more series
thereunder. The Senior Securities will be unsecured obligations of the Company
and will rank on a parity with all other unsecured and unsubordinated
indebtedness of the Company. The Subordinated Securities will be unsecured and
subordinated in right of payment to all existing and future Senior Indebtedness
of the Company (including any Senior Securities), in the manner and to the
extent described in the applicable Prospectus Supplement.
The Company primarily conducts its operations through its subsidiaries. The
rights of the Company and its creditors, including the Holders of the Debt
Securities, to participate in the assets of any subsidiary upon the latter's
liquidation or reorganization will be subject to the prior claims of the
subsidiary's creditors except to the extent that the Company may itself be a
creditor with recognized claims against the subsidiary.
Reference is made to the Prospectus Supplement relating to the particular
series of Debt Securities offered thereby for the following terms thereof, among
others: (1) the title of such Debt Securities and whether they are Senior
Securities or Subordinated Securities; (2) any limit upon the aggregate
principal amount of such Debt Securities; (3) the person to whom any interest on
such Debt Securities shall be payable if other than the registered holder; (4)
the date or dates on which such Debt Securities will mature; (5) the rate or
rates at which such Debt Securities shall bear interest, if any, or the method
by which such rate or rates shall be determined; (6) the date or dates from
which any such interest shall accrue, and the Interest Payment Dates on which
payment of any such interest will be payable and the Regular Record Dates for
such Interest Payment Dates (or method for establishing any such date or dates);
(7) the place or places where the principal of, premium, if any, and any
interest on such Debt Securities shall be payable; (8) the period or periods
within which, the price or prices at which, and the terms and conditions upon
which such Debt Securities may be redeemed, in whole or in part, at the option
of the Company; (9) the obligation, if any, of the Company to redeem, repay or
purchase such Debt Securities pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods within
which, the price or prices at which, and the terms and conditions upon which
such Debt Securities shall be redeemed, repaid or purchased, in whole or in
part, pursuant to such obligation; (10) the denominations in which any debt
securities will be issuable, if other than denominations of $1,000 and any
integral multiple thereof; (11) if other than U.S. dollars, the currency,
currencies or currency unit or units in which principal of, premium, if any, and
interest on such Debt Securities shall be payable and the manner of determining
the equivalent thereof in the currency of the United States for any purpose;
(12) if the principal of or any premium or interest on such Debt Securities is
to be payable, at the election of the Company or a Holder thereof, in one or
more currencies or currency units other than that or those in which such Debt
Securities are stated to be payable, the currency, currencies or currency units
in which payment of the principal of and any premium and interest on Debt
Securities of such series as to which such election is made shall be payable,
and the period or periods within which and the terms and conditions upon which
such election is to be made; (13) the index or formulas, if any, with reference
to which the amount of any payment of principal of, premium, if any, or interest
on the Debt Securities will be determined; (14) the portion of the principal
amount of such Debt Securities which will be payable upon declaration of
acceleration of the Maturity thereof, if other than the stated principal amount
thereof; (15) if the principal amount payable at the Stated Maturity of any of
the Debt Securities will not be determinable as of any one or more dates prior
to the Stated Maturity, the amount which will be deemed to be such principal
amount as of any such date for any purpose, including the principal amount
thereof which will be due and payable upon any Maturity other than the Stated
Maturity or which will be deemed to be Outstanding as of any such date (or, in
any such case, the manner in which such deemed principal amount is to be
determined); (16) any restrictive covenants included for the benefit of Holders
of such Debt Securities; (17) any additional Events of Default with respect to
such Debt Securities; (18) whether such Debt Securities shall be issued, in
whole or in part, in permanent global form (each a "Global Security") and, in
such case, the Depositary for such Global Security or Securities; (19) in the
case of an issue of Subordinated Securities, the applicable subordination
provisions; (20) the applicability of any provisions described below under
"--Discharge, Defeasance and Covenant Defeasance;" and (21) any other terms of
such Debt Securities not inconsistent with the provisions of the Indentures.
Principal, premium, if any, and interest will be payable, and such Debt
Securities will be transferable, in the manner described in the Prospectus
Supplement relating to such Debt Securities. The maturities and interest rates
of certain Debt Securities sold through underwriters or agents may be fixed by
the Company from time to time, in which case no specific maturities or rates,
but rather permissible ranges of such maturities and rates will be set forth in
the Prospectus Supplement relating thereto. The offices or agencies of the
Company at which exchanges and transfers of Debt Securities will be registrable
and the office or agency of any Paying Agent with respect to the Debt Securities
will be identified in the Prospectus Supplement relating thereto, provided that,
at the option of the Company, payment of interest may be made by check mailed to
the address of the Person entitled thereto as it appears in the Security
Register.
Unless otherwise indicated in the Prospectus Supplement relating thereto,
the Debt Securities will be issued only in registered form, without coupons, in
denominations of $1,000 or any integral multiple thereof. No service charge will
be made for any transfer or exchange of the Debt Securities, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge in connection therewith. The Indenture also provides that the Debt
Securities of any series, if so specified with respect to a particular series,
may be issued in permanent global form.
Debt Securities may be issued at a discount from their stated principal
amount. United States Federal income tax considerations and other special
considerations applicable to any such Original Issue Discount Securities will be
described in the applicable Prospectus Supplement. "Original Issue Discount
Security" means any security which provides for an amount less than the stated
principal amount thereof to be due and payable upon the declaration of
acceleration of the maturity thereof upon the occurrence and continuance of an
Event of Default.
If the purchase price of any of the Debt Securities is denominated in a
foreign currency or currencies or a foreign currency unit or units or if the
principal of and any premium and interest on any series of Debt Securities is
payable in a foreign currency or currencies or a foreign currency unit or units,
the restrictions, elections, general tax considerations, specific terms and
other information with respect to such issue of Debt Securities and such foreign
currency or currencies or foreign currency unit or units will be set forth in
the applicable Prospectus Supplement. If any index is used to determine the
amount of payments of principal of, premium, if any, or interest on any series
of Debt Securities, special Federal income tax, accounting and other
considerations applicable thereto will be described in the applicable Prospectus
Supplement.
Except as indicated in the applicable Prospectus Supplement, there are no
provisions of the Indenture that affords Holders of the Debt Securities
protection in the event of a highly leveraged transaction involving the Company.
FORM, DENOMINATION, BOOK-ENTRY PROCEDURES AND TRANSFER
Unless otherwise specified in the Prospectus Supplement, the Debt
Securities initially will be represented by one or more securities in
registered, global form (collectively, the "Global Debt Securities"). The Global
Debt Securities will be deposited upon issuance with the Trustee as custodian
for DTC in New York, New York, and registered in the name of DTC or its nominee,
in each case for credit to an account of a direct or indirect participant in DTC
as described below.
Except as set forth below, the Global Debt Securities may be transferred,
in whole and not in part, only to another nominee of DTC or to a successor of
DTC or its nominee. Beneficial interests in the Global Debt Securities may not
be exchanged for Debt Securities in certificated form except in the limited
circumstances described under "--Exchange of Book-Entry Debt Securities for
Certificated Debt Securities" below.
DEPOSITARY PROCEDURES
DTC has advised the Company that DTC is a limited-purpose trust company
created to hold securities for its participating organizations (collectively,
the "Participants") and to facilitate the clearance and settlement of
transactions in those securities between Participants through electronic
book-entry changes in accounts of its Participants. The Participants include
securities brokers and dealers, banks, trust companies, clearing corporations
and certain other organizations. Access to DTC's system is also available to
other entities such as banks, brokers, dealers and trust companies that clear
through or maintain a custodial relationship with a Participant, either directly
or indirectly (collectively, the "Indirect Participants"). Persons who are not
Participants may beneficially own securities held by or on behalf of DTC only
through the Participants or the Indirect Participants. The ownership interest
and transfer of ownership interest of each actual purchaser of each security
held by or on behalf of DTC are recorded on the records of the Participants and
Indirect Participants.
DTC has also advised the Company that, pursuant to procedures established
by it, (i) upon deposit of the Global Debt Securities, DTC will credit the
accounts of Participants designated by the Underwriters or Agents with portions
of the principal amount of the Global Debt Securities and (ii) ownership of such
interests in the Global Debt Securities will be shown on, and the transfer of
ownership thereof will be effected only through, records maintained by DTC (with
respect to the Participants) or by the Participants and the Indirect
Participants (with respect to other owners of beneficial interests in the Global
Debt Securities).
Investors in the Global Debt Securities may hold their interests therein
directly through DTC if they are Participants in such system or indirectly
through organizations which are Participants in such system. All interests in a
Global Debt Security will be subject to the procedures and requirements of DTC.
The laws of some states require that certain persons take physical delivery in
certificated form of securities that they own. Consequently, the ability to
transfer beneficial interests in a Global Debt Security to such persons will be
limited to that extent. Because DTC can act only on behalf of Participants,
which in turn act on behalf of Indirect Participants and certain banks, the
ability of a person having beneficial interests in a Global Debt Security to
pledge such interests to persons or entities that do not participate in the DTC
system, or otherwise take actions in respect of such interests, may be affected
by the lack of a physical certificate evidencing such interests.
Except as described below, owners of interests in the Global Debt
Securities will not have Debt Securities registered in their name, will not
receive physical delivery of Debt Securities in certificated form and will not
be considered the registered owners or holders thereof under the Indenture for
any purpose.
Payments in respect of the Global Debt Security registered in the name of
DTC or its nominee will be payable by the Trustee to DTC in its capacity as the
registered holder under the Indenture. Under the terms of the Indenture, the
Trustee will treat the persons in whose names the Debt Securities, including the
Global Debt Securities, are registered as the owners thereof for the purpose of
receiving such payments and for any and all other purposes whatsoever.
Consequently, neither the Trustee nor any agent thereof has or will have any
responsibility or liability for (i) any aspect of DTC's records or any
Participant's or Indirect Participant's records relating to or payments made on
account of beneficial ownership interests in the Global Debt Securities, or for
maintaining, supervising or reviewing any of DTC's records or any Participant's
or Indirect Participant's records relating to the beneficial ownership interests
in the Global Debt Securities or (ii) any other matter relating to the actions
and practices of DTC or any of its Participants or Indirect Participants. DTC
has advised the Company that its current practice, upon receipt of any payment
in respect of securities such as the Debt Securities, is to credit the accounts
of the relevant Participants with the payment on the payment date, in amounts
proportionate to their respective holdings in principal amount of beneficial
interests in the relevant security as shown on the records of DTC unless DTC has
reason to believe it will not receive payment on such payment date. Payments by
the Participants and the Indirect Participants to the beneficial owners of Debt
Securities will be governed by standing instructions and customary practices and
will be the responsibility of the Participants or the Indirect Participants and
will not be the responsibility of DTC, the Trustee or the Company. Neither the
Company nor the Trustee will be liable for any delay by DTC or any of its
Participants in identifying the beneficial owners of the Debt Securities, and
the Company and the Trustee may conclusively rely on and will be protected in
relying on instructions from DTC or its nominee for all purposes.
Interests in the Global Debt Securities will trade in DTC's Same-Day Funds
Settlement System and secondary market trading activity in such interests will
therefore settle in immediately available funds, subject in all cases to the
rules and procedures of DTC and its Participants and Indirect Participants.
Transfers among Participants and Indirect Participants in DTC will be effected
in accordance with DTC's procedures, and will be settled in same-day funds.
DTC has advised the Company that it will take any action permitted to be
taken by a holder of Debt Securities only at the direction of one or more
Participants to whose account with DTC interests in the Global Debt Securities
are credited and only in respect of such portion of the principal amount of the
Debt Securities as to which such Participant or Participants has or have given
such direction. However, if there is an Event of Default under the Indenture,
DTC reserves the right to exchange the Global Debt Securities for legended Debt
Securities in certificated form and to distribute such Debt Securities to its
Participants.
The information in this section concerning DTC and its book-entry system
has been obtained from sources that the Company believe to be reliable, but the
Company does not take responsibility for the accuracy thereof.
Although DTC has agreed to the foregoing procedures to facilitate transfers
of interest in the Global Debt Securities among Participants in DTC, it is under
no obligation to perform or to continue to perform such procedures, and such
procedures may be discontinued at any time. Neither the Company nor the Trustee
will have any responsibility for the performance by DTC or its Participants or
Indirect Participants of their respective obligations under the rules and
procedures governing DTC's operations.
EXCHANGE OF BOOK-ENTRY DEBT SECURITIES FOR CERTIFICATED DEBT SECURITIES
A Global Debt Security is exchangeable for Debt Securities in registered
certificated form if (i) DTC (x) notifies the Company that it is unwilling or
unable to continue as Depositary for the Global Debt Security and the Company
thereupon fails to appoint a successor Depositary within 90 days or (y) has
ceased to be a clearing agency registered under the Exchange Act, (ii) the
Company in its sole discretion elects to cause the issuance of the Debt
Securities in certificated form or (iii) there shall have occurred and be
continuing an Event of Default or any event which after notice or lapse of time
or both would be an Event of Default under the Indenture. In all cases,
certificated Debt Securities delivered in exchange for any Global Debt Security
or beneficial interests therein will be registered in the names, and issued in
any approved denominations, requested by or on behalf of the Depositary (in
accordance with its customary procedures).
PAYMENT AND PAYING AGENT
Payments in respect of the Global Debt Securities held in global form shall
be made to the Depositary, which shall credit the relevant accounts at the
Depositary on the applicable payment dates. In respect of the Debt Securities
that are not held by the Depositary, such payments shall be made by check mailed
to the address of the holder entitled thereto as such address shall appear on
the register. Unless otherwise specified in the applicable Prospectus
Supplement, the paying agent (the "Paying Agent") shall initially be the Trustee
and any co-paying agent chosen by the Trustee and acceptable to the Company. The
Paying Agent shall be permitted to resign as Paying Agent upon 30 days' written
notice to the Trustee and the Company. In the event that the Trustee shall no
longer be the Paying Agent, the Company shall appoint a successor (which shall
be a bank or trust company) to act as Paying Agent.
Any moneys deposited with the Trustee or any Paying Agent, or then held by
the Company in trust, for the payment of the principal of (and premium, if any)
or interest on any Debt Securities and remaining unclaimed for two years after
such principal or interest has become due and payable shall, at the request of
the Company, be repaid to the Company and the holder of such Debt Securities
shall thereafter look, as a general unsecured creditor, only to the Company for
payment thereof.
SUBORDINATION OF SUBORDINATED SECURITIES
The indebtedness evidenced by any Subordinated Securities that may be
issued by the Company will be subordinated and junior in right of payment to the
extent set forth in the subordination provisions of the Indenture to the prior
payment in full of amounts then due on all Senior Indebtedness (as defined
below). No payment shall be made on the Subordinated Securities, including by
way of redemption, purchase, or in any other manner, if the Trustee shall have
received notice from the Company or any holder of more than $10 million of
Senior Indebtedness, that (i) there exists a default which shall be continuing
in the payment of principal of, or premium, if any, or interest on any Senior
Indebtedness, beyond any applicable grace period with respect thereto, or (ii)
there exists a default (other than a default specified in clause (i) above) with
respect to any Senior Indebtedness which shall be continuing; provided, however,
that no notice given with respect to one or more defaults of the type specified
in clause (ii) shall suspend for longer than 180 days from the date of such
notice any payment on Subordinated Securities that has become due, and only one
such notice may be given during any 360-day period.
Upon any distribution of assets of the Company upon any liquidation,
dissolution or other winding-up of the Company, whether voluntary or
involuntary, or in bankruptcy or insolvency, all principal of, premium, if any,
and interest due upon all Senior Indebtedness must be paid in full before the
Holders of the Subordinated Securities or the Trustee, in its capacity as
Trustee of any Subordinated Securities, are entitled to receive or retain any
assets so distributed in respect of the Subordinated Securities. By reason of
this provision, in the event of insolvency, Holders of the Subordinated
Securities may recover less, ratably, than other creditors of the Company,
including holders of Senior Indebtedness.
Subject to payment in full of all Senior Indebtedness of the Company, the
rights of Holders of the Subordinated Securities will be subrogated to the
rights of holders of Senior Indebtedness to receive payments or distributions of
cash, property or securities of the Company applicable to Senior Indebtedness.
"Senior Indebtedness" means the principal of, premium, if any, and interest
on (a) all indebtedness of the Company (including indebtedness of others
guaranteed by the Company), other than the Subordinated Securities, which is (i)
for money borrowed or (ii) evidenced by a note or similar instrument given in
connection with the acquisition of any business, properties or assets of any
kind or in connection with the obtaining of financing, and (b) amendments,
renewals, extensions, modifications and refundings of any such indebtedness or
obligation, in any such case whether outstanding on the date of the Subordinated
Indenture or thereafter created, incurred or assumed, unless in any case in the
instrument creating or evidencing any such indebtedness or obligation or
pursuant to which the same is outstanding it is provided that such indebtedness
or obligation is not superior in right of payment to the Subordinated Securities
or it is provided that such indebtedness or obligation is subordinated to Senior
Indebtedness to substantially the same extent as the Subordinated Securities are
subordinated to Senior Indebtedness.
The Indenture places no limitation on the amount of Senior Indebtedness
that may be incurred by the Company. The Company expects from time to time to
incur additional indebtedness constituting Senior Indebtedness. As of September
30, 1997, the amount of Senior Indebtedness was approximately $669.7 million.
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
The Indenture provides that the Company may merge or consolidate with, or
sell or convey all or substantially all of its assets to, any other corporation,
provided that (i) either the Company shall be the continuing entity, or the
successor entity (if other than the Company) shall be any entity organized and
existing under the laws of the United States or a state thereof or the District
of Columbia and such entity shall expressly assume by supplemental indenture all
of the obligations of the Company under the Debt Securities and the Indenture,
(ii) immediately after giving effect to such transactions no Default or Event of
Default shall have occurred and be continuing, and (iii) the Company shall have
delivered to the Trustee an Officer's Certificate and opinion of counsel,
stating that the transaction and supplemental indenture comply with the
Indenture.
MODIFICATION OF THE INDENTURE
Under the Indenture, with certain exceptions, the rights and obligations of
the Company with respect to any series of Debt Securities and the rights of
holders of any series of Debt Securities may only be modified by the Company and
the Trustee with the consent of the holders of at least a majority in principal
amount of the outstanding Debt Securities affected by such modification.
However, without the consent of each holder of any series of Debt Securities
affected, an amendment, waiver or supplement may not (i) reduce the principal
of, or rate of interest on, any such series of Debt Securities; (ii) change the
stated maturity date of the principal of, or any installment of interest on, any
such series of Debt Securities; (iii) waive a default in the payment of the
principal amount of, or the interest on, or any premium payable on redemption
of, any such series of Debt Securities; (iv) change the currency for payment of
the principal of, or premium or interest on, any such series of Debt Securities;
(v) impair the right to institute suit for the enforcement of any such payment
when due; (vi) reduce the amount of outstanding of such series of Debt
Securities necessary to consent to an amendment, supplement or waiver provided
for in the Indenture; (vii) modify any provisions of the Indenture relating to
the modification and amendment of the Indenture or waivers of past defaults,
except as otherwise specified; or (viii) modify the subordination provisions of
any series of Subordinated Securities in a manner adverse to the holders of any
such series of Subordinated Securities.
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
The Company is permitted under the Indenture to discharge certain
obligations to holders of any series of Debt Securities issued thereunder that
have not already been delivered to the Trustee for cancellation and that either
have become due and payable or will become due and payable within one year (or
scheduled for redemption within one year) by irrevocably depositing with the
Trustee, in trust, funds in such currency in which such series of Debt
Securities are payable in an amount sufficient to pay the entire indebtedness on
such series of Debt Securities in respect of principal (and premium, if any) and
interest to the date of such deposit (if such series of Debt Securities have
become due and payable) or to the stated maturity and redemption date, as the
case may be.
The Indenture provides that the Company may elect either (a) to defease and
be discharged from any and all obligations with respect to any series of Debt
Securities (except for the obligation to pay additional amounts, if any, upon
the occurrence of certain events of tax, assessment or governmental charge with
respect to payments on such series of Debt Securities and the obligations to
register the transfer or exchange of such series of Debt Securities, to replace
temporary or mutilated, destroyed, lost or stolen Debt Securities, to maintain
an office or agency in respect of such Debt Securities and to hold moneys for
payment in trust) ("defeasance"), or (b) to be released from any obligations
with respect to such Debt Securities under the restrictions described under
"Description of Debt Securities--Certain Covenants" in the applicable Prospectus
Supplement, or its obligations with respect to any other covenant, and any
omission to comply with such obligations will not constitute an Event of Default
with respect to such series of Debt Securities ("covenant defeasance"), in
either case upon the irrevocable deposit by the Company with the Trustee, in
trust, of an amount, in cash in United States dollars, or Government
Obligations, or both, applicable to such series of Debt Securities which through
the scheduled payment of principal and interest in accordance with their terms
will provide money in an amount sufficient to pay the principal of (and premium,
if any) and interest on such series of Debt Securities on the scheduled due
dates therefor.
Such a trust will only be permitted to be established if, among other
things, the Company has delivered to the Trustee an opinion of counsel to the
effect that the holders of such series of Debt Securities will not recognize
income, gain or loss for U.S. federal income tax purposes as a result of such
defeasance or covenant defeasance and will be subject to U.S. federal income tax
on the same amounts, in the same manner and at the same times as would have been
the case if such defeasance or covenant defeasance had not occurred, and such
opinion of counsel, in the case of defeasance, will be required to refer to and
be based upon a ruling of the Internal Revenue Service or a change in applicable
United States federal income tax law occurring after the date of the Indenture.
If the Company effects covenant defeasance with respect to any series of
Debt Securities and such Debt Securities are declared due and payable because of
an Event of Default, the amount in cash in United States dollars and Government
Obligations on deposit with the Trustee, will be sufficient to pay amounts due
on such Debt Securities at the time of their stated maturity but may not be
sufficient to pay amounts due on such Debt Securities at the time of the
acceleration resulting from such Event of Default. However, the Company would
remain liable to make payment of such amounts due at the time of acceleration.
"GOVERNMENT OBLIGATIONS" means securities which are (a) direct obligations
of the United States of America, for the payment of which its full faith and
credit is pledged, or (b) obligations of a person controlled or supervised by
and acting as an agency or instrumentality of the United States of America, the
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America which are not callable or redeemable
at the option of the issuer thereof, and will also include a depository receipt
issued by a bank or trust as custodian with respect to any such Government
Obligation or a specific payment of interest on or principal of any such
Government Obligation held by such custodian for the account of the holder of a
depositary receipt, provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the Government Obligation or the specific payment of interest on or principal of
the Government Obligation evidenced by such depository receipt.
EVENTS OF DEFAULT, NOTICE AND WAIVER
The following will be Events of Default under the Indenture with respect to
Debt Securities of any series (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or in the case of Subordinated
Securities, by reason of the subordination provisions of the Indenture): (i)
default in the payment of interest on such series of Debt Securities when due
and payable, which continues for 30 days; (ii) default in the payment of
principal of such series of Debt Securities when due and payable at maturity;
(iii) failure to perform any other covenant of the Company contained in the
Indenture or the Debt Securities which continues for 60 days after written
notice as provided in the Indenture (other than a covenant expressly included in
the Indenture solely for the benefit of one or more series of Debt Securities
other than that series); (iv) default under any bond, debenture or other
Indebtedness of the Company or any subsidiary if (a) either (x) such event of
default results from the failure to pay any such Indebtedness at maturity or (y)
as a result of such event of default, the maturity of such Indebtedness has been
accelerated prior to its expressed maturity and such acceleration shall not be
rescinded or annulled or the accelerated amount paid within 10 days after notice
to the Company of such acceleration, or such Indebtedness having been
discharged, and (b) the principal amount of such Indebtedness, together with the
principal amount of any other such Indebtedness in default for failure to pay
principal or interest thereon, or the maturity of which has been so accelerated,
aggregates $10,000,000 or more; and (v) certain events of bankruptcy, insolvency
or reorganization relating to the Company.
If an Event of Default occurs and is continuing with respect to any series
of Debt Securities, either the Trustee or the holders of a majority in aggregate
principal amount of the outstanding Debt Securities of such series may declare
such Debt Securities due and payable immediately.
The Company will not declare or pay any dividends or make any distribution
to holders of its capital stock (other than dividends or distributions payable
in capital stock of the Company) if at the time of any of the aforementioned
actions an Event of Default has occurred and is continuing or would exist
immediately after giving effect to such action, except for the payment of any
dividend within 60 days after the date of declaration when the payment would
have complied with the foregoing provisions on the date of declaration.
The Indenture provides that the Trustee will, within 90 days after the
occurrence of any Default or Event of Default with respect to any series of Debt
Securities, give to the holders of such series of Debt Securities notice of all
uncured Defaults and Events of Default known to it, but the Trustee will be
protected in withholding such notice if it in good faith determines that the
withholding of such notice is in the interest of such holders, except in the
case of a default in the payment of the principal of (or premium, if any) or
interest on any series of Debt Securities.
The Indenture provides that the holders of a majority in aggregate
principal amount of any series of Debt Securities then outstanding may direct
the time, method and place of conducting any proceedings for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee with respect to such series of Debt Securities. The right of a holder to
institute a proceeding with respect to the Indenture is subject to certain
conditions precedent including notice and indemnity to the Trustee, but the
holder has an absolute right to receipt of principal of (and premium, if any)
and interest on such holder's Debt Securities on or after the respective due
dates expressed in such Debt Securities, and to institute suit for the
enforcement of any such payments.
The holders of a majority in principal amount of any series of Debt
Securities then outstanding may on behalf of the holders of all Debt Securities
of such series waive certain past defaults, except a default in payment of the
principal of (or premium, if any) or interest on any Debt Securities or such
series or in respect of certain provisions of the Indenture which cannot be
modified or amended without the consent of the holder of each Debt Security
affected thereby.
The Company will be required to furnish to the Trustee annually a statement
of certain officers of the Company stating whether or not they know of any
Default or Events of Default and, if they have knowledge of a Default or Event
of Default, a description of the efforts to remedy the same.
GOVERNING LAW
The Debt Securities and the Indenture will be governed by and construed in
accordance with the laws of the State of New York, without giving effect to its
conflicts of law rules.
INFORMATION CONCERNING THE TRUSTEE
The Trustee will act as registrar and transfer agent for all series of Debt
Securities. Registration of transfers of Debt Securities of any series will be
effected without charge by or on behalf of the Company, but upon payment of any
tax or other governmental charges that may be imposed in connections with any
transfer or exchange.
The Trustee is subject to all the duties and responsibilities specified
with respect to an indenture trustee under the Trust Indenture Act. Subject to
such provisions, the Trustee is under no obligation to exercise any of the
powers vested in it by the Indenture at the request of any holder of Debt
Securities, unless offered reasonable indemnity by such holder against the
costs, expenses and liabilities which might be incurred thereby. The Trustee is
not required to expend or risk its own funds or otherwise incur personal
financial liability in the performance of its duties if the Trustee reasonably
believes that repayment or adequate indemnity is not reasonably assured to it.
DESCRIPTION OF PREFERRED STOCK
The following description of the terms of the Preferred Stock sets forth
certain general terms and provisions of the Preferred Stock to which any
Prospectus Supplement may relate. Certain other terms of any series of the
Preferred Stock offered by any Prospectus Supplement will be described in such
Prospectus Supplement. The description of certain provisions of the Preferred
Stock set forth below and in any Prospectus Supplement does not purport to be
complete and is subject to and qualified in its entirety by reference to the
Company's Amended and Restated Certificate of Incorporation (the "Certificate of
Incorporation") and Restated Bylaws (the "Bylaws"), including the definitions
therein of certain terms, and the certificate of designations (each a
"Certificate of Designations") relating to each series of the Preferred Stock
that will be filed with the Commission and incorporated by reference as an
exhibit to the Registration Statement of which this Prospectus is a part at or
prior to the time of the issuance of such series of the Preferred Stock.
GENERAL
Under the Company's Certificate of Incorporation, the Company is authorized
to issue up to 1,000,000 shares of Preferred Stock, in one or more series, with
such designations, voting powers, preferences and relative participating,
optional or other special rights, and with such qualifications, limitations or
restrictions thereon, as may be stated or expressed in resolutions providing for
the creation and issuance thereof adopted by the Board of Directors of the
Company. Thus, without stockholder approval, the Board of Directors could
authorize the issuance of Preferred Stock with voting, conversion and other
rights that could dilute the voting power and other rights of the holders of
Common Stock. No Preferred Stock is currently outstanding.
The Preferred Stock shall have the dividend, liquidation, redemption and
voting rights set forth below, unless otherwise provided in a Prospectus
Supplement relating to a particular series of the Preferred Stock. Reference is
made to the Prospectus Supplement relating to the particular series of the
Preferred Stock offered hereby for specific terms, including: (i) the
designation and stated value per share of such Preferred Stock and the number of
shares offered; (ii) the amount of liquidation preference per share; (iii) the
initial public offering price at which such Preferred Stock will be issued; (iv)
the dividend rate (or method of calculation), the dates on which dividends shall
be payable and the dates from which dividends shall commence to cumulate, if
any; (v) any redemption or sinking fund provisions; (vi) any conversion rights;
and (vii) any additional voting, dividend, liquidation, redemption, sinking fund
and other rights, preferences, privileges, limitations and restrictions.
The Preferred Stock will, when issued, be fully paid and nonassessable and
will have no preemptive rights. Unless otherwise provided in the applicable
Prospectus Supplement, each series of the Preferred Stock will rank on a parity
as to the payment of dividends and amounts upon dissolution, liquidation or
winding up of the Company. The rights of the holders of each series of the
Preferred Stock will be subordinate to those of the Company's general creditors.
DIVIDEND RIGHTS
Holders of the Preferred Stock of each series will be entitled to receive,
when, as and if declared by the Board of Directors of the Company, out of funds
of the Company legally available therefor, cash dividends on such dates and at
such rates as are set forth in, or as are determined by the method described in,
the Prospectus Supplement relating to such series of the Preferred Stock. Such
rate may be fixed or variable or both. Each such dividend will be payable to the
holders of record as they appear on the stock books of the Company on such
record dates, fixed by the Board of Directors of the Company, as specified in
the Prospectus Supplement relating to such series of Preferred Stock.
Such dividends may be cumulative or noncumulative, as provided in the
Prospectus Supplement relating to such series of Preferred Stock. If the Board
of Directors of the Company fails to declare a dividend payable on a dividend
payment date on any series of Preferred Stock for which dividends are
noncumulative, then the right to receive a dividend in respect of the dividend
period ending on such dividend payment date will be lost, and the Company will
have no obligation to pay the dividend accrued for such period, whether or not
dividends on such series are declared payable on any future dividend payment
dates. Dividends on the shares of each series of Preferred Stock for which
dividends are cumulative will accrue from the date on which the Company
initially issues shares of such series or such other dates as may be set forth
in the applicable Prospectus Supplement.
Unless otherwise specified in the applicable Prospectus Supplement, so long
as the shares of any series of the Preferred Stock are outstanding, unless (i)
full dividends (including, if such Preferred Stock is cumulative, dividends for
prior dividend periods) have been paid or declared and set apart for payment on
all outstanding shares of the Preferred Stock of such series (other than Junior
Stock, as defined below) and (ii) the Company is not in default or in arrears
with respect to the mandatory or optional redemption or mandatory repurchase or
other mandatory retirement of, or with respect to any sinking or other analogous
fund for, any shares of Preferred Stock of such series (other than Junior
Stock), the Company may not declare any dividends on any shares of Common Stock
of the Company or any other stock of the Company ranking as to the payment of
dividends or amounts upon dissolution, liquidation or winding up of the Company
junior to such series of Preferred Stock (the Common Stock and any such other
stock being herein referred to as "Junior Stock"), or make any payment on
account of, or set apart money for, the purchase, redemption or other retirement
of, or for a sinking or other analogous fund for, any shares of Junior Stock or
make any distribution in respect thereof, whether in cash or property or in
obligations or stock of the Company, other than Junior Stock that is neither
convertible into, nor exchangeable or exercisable for, any securities of the
Company other than Junior Stock and other than as a result of the
reclassification of Junior Stock.
LIQUIDATION PREFERENCES
Unless otherwise specified in the applicable Prospectus Supplement, in the
event of any liquidation, dissolution or winding up of the Company, whether
voluntary or involuntary, the holders of a series of Preferred Stock will be
entitled to receive out of the assets of the Company available for distribution
to stockholders, before any distribution of assets is made to the holders of
Junior Stock, the amount set forth in the Prospectus Supplement relating to such
series of the Preferred Stock. If, upon any voluntary or involuntary
liquidation, dissolution or winding up of the Company, the amounts payable with
respect to the Preferred Stock of any series and any other shares of preferred
stock of the Company (including any other series of the Preferred Stock) ranking
as to the payment of amounts upon the dissolution, liquidation or winding up of
the Company on a parity with such series of the Preferred Stock are not paid in
full, the holders of the Preferred Stock of such series and of such other shares
of preferred stock of the Company will share ratably in any such distribution of
assets of the Company in proportion to the full respective preferential amounts
to which they are entitled. After payment to the holders of the Preferred Stock
of each series of the full preferential amounts of the liquidating distribution
to which they are entitled, the holders of each such series of the Preferred
Stock will be entitled to no further participation in any distribution of assets
by the Company.
REDEMPTION
A series of the Preferred Stock may be redeemable, in whole or from time to
time in part, at the option of the Company, and may be subject to mandatory
redemption pursuant to a sinking fund or otherwise, in each case upon terms, at
the times and at the redemption prices set forth in the Prospectus Supplement
relating to such series. Shares of the Preferred Stock redeemed by the Company
will be restored to the status of authorized but unissued shares of preferred
stock of the Company.
In the event that fewer than all of the outstanding shares of a series of
the Preferred Stock are to be redeemed, whether by mandatory or optional
redemption, the number of shares to be redeemed will be determined by lot or pro
rata (subject to rounding to avoid fractional shares) as may be determined by
the Company or by any other method as may be determined by the Company in its
sole discretion to be equitable. From and after the redemption date (unless
default is made by the Company in providing for the payment of the redemption
price plus accumulated and unpaid dividends, if any) dividends will cease to
accumulate on the shares of the Preferred Stock called for redemption and all
rights of the holders thereof (except the right to receive the redemption price
plus accumulated and unpaid dividends, if any) will cease.
Unless otherwise specified in the applicable Prospectus Supplement, so long
as any dividends on shares of any series of the Preferred Stock or any other
series of preferred stock of the Company ranking on a parity as to payment of
dividends and amounts upon the liquidation, dissolution or winding up of the
Company with such series of the Preferred Stock are in arrears, no shares of any
such series of the Preferred Stock or such other series of preferred stock of
the Company will be redeemed (whether by mandatory or optional redemption)
unless all such shares are simultaneously redeemed, and the Company will not
purchase or otherwise acquire any such shares; provided, however, that the
foregoing will not prevent the purchase or acquisition of such shares pursuant
to a purchase or exchange offer made on the same terms to holders of all such
shares outstanding.
CONVERSION RIGHTS
The terms, if any, on which shares of Preferred Stock of any series may be
exchanged for or converted (mandatorily or otherwise) into shares of Common
Stock or another series of Preferred Stock will be set forth in the Prospectus
Supplement relating thereto.
VOTING RIGHTS
Except as indicated in a Prospectus Supplement relating to a particular
series of the Preferred Stock, or except as required by applicable Delaware law
or in the Company's Certificate of Incorporation or as described below, the
holders of the Preferred Stock will not be entitled to vote for any purpose.
TRANSFER AGENT AND REGISTRAR
Unless otherwise indicated in a Prospectus Supplement relating thereto,
American Stock Transfer and Trust Company will be the transfer agent, dividend
and redemption price disbursement agent and registrar for shares of each series
of the Preferred Stock. See "Description of Common Stock--General - Transfer
Agent and Registrar."
DESCRIPTION OF COMMON STOCK
The following description of the terms of the Common Stock sets forth
certain general terms and provisions of the Common Stock to which any Prospectus
Supplement may relate. The description of certain provisions of the Common Stock
set forth below and in any Prospectus Supplement does not purport to be complete
and is subject to and qualified in its entirety by reference to the Delaware
General Corporation Law, as amended (the "DGCL"), and to provisions of the
Company's Certificate of Incorporation and Bylaws, including the definitions
therein of certain terms.
GENERAL
The Company's Certificate of Incorporation authorizes the issuance of up to
100,000,000 shares of Common Stock, par value $.001 per share, of which
27,551,728 shares have been issued and were outstanding as of December 31, 1997.
The Common Stock of the Company is listed on the New York Stock Exchange and the
additional shares of Common Stock that may be offered hereby will be listed,
subject to notice of issuance, on such exchange.
DIVIDENDS
After any requirements with respect to dividends on any Preferred Stock
have been met, the holders of Common Stock will be entitled to receive such
dividends, if any, as may be declared from time to time by the Board of
Directors on the Common Stock, which dividends will be paid out of assets
legally available therefor and will be distributed pro rata in accordance with
the number of shares of Common Stock held by each such holder.
VOTING RIGHTS
Each holder of Common Stock is entitled to one vote per share on each
matter to be voted on by stockholders. Because there is no cumulative voting of
shares, the holders of a majority of the voting power of the shares voting for
the election of directors can elect all of the directors if they choose to do
so.
LIQUIDATION RIGHTS
In the event of any liquidation, distribution or sale of assets,
dissolution or winding-up of the Company, holders of Common Stock will be
entitled to share equally and ratably in all assets available for distribution
to stockholders after payment of creditors and distribution in full to the
holders of any series of Preferred Stock outstanding at the time of any
preferential amount to which they may be entitled.
OTHER TERMS
The Common Stock carried no preemptive rights and is not convertible,
redeemable or assessable, or entitled to the benefit of any sinking fund.
TRANSFER AGENT AND REGISTRAR
The Transfer Agent and Registrar for the Company's Common Stock is American
Stock Transfer and Trust Company.
CERTAIN CERTIFICATE OF INCORPORATION AND BYLAW PROVISIONS
The Company's Certificate of Incorporation and Bylaws contain certain
provisions that may have an effect of delaying or deterring a change in control
of the Company. Such provisions require, among other things, (i) a classified
Board of Directors, with each class containing as nearly as possible one-third
of the total number of members of the Board of Directors and the members of each
class serving for staggered three-year terms, (ii) a vote of at least 75% of the
Company's voting securities to amend certain provisions of the Certificate of
Incorporation and Bylaws, (iii) advance notice procedures with respect to
nominations of directors or other matters to be voted on by stockholders other
than by or at the direction of the Board of Directors, (iv) the filling of
vacancies on the Board of Directors only by a vote of a majority of the
directors then in office, (v) the taking of any action by the Company's
stockholders only at a duly called annual or special meeting, which may only be
called by the Chairman of the Board of Directors of a majority of the directors
and (vi) removal of a director only for cause upon the vote of the holders of a
majority of the Company's outstanding voting securities.
DELAWARE LAW AND CERTAIN CHARTER PROVISIONS
The Company is subject to the provisions of Section 203 of the DGCL. In
general, this statute prohibits a publicly-held Delaware corporation from
engaging in a "business combination" with an "interested stockholder" for a
period of three years after the date of the transaction in which the person
becomes an interested stockholder, unless the business combination is approved
by a vote of at least 80% of the holders of the Company's voting securities. An
"interested stockholder" is a person who, together with affiliates and
associates, owns (or within the prior three years did own) 15% or more of the
corporation's voting stock. Such provisions could render the Company more
difficult to be acquired pursuant to an unfriendly acquisition by a third party
by making it more difficult for such person to obtain control of the Company
without the approval of the Board of Directors.
The Company has included in its Certificate of Incorporation provisions to
eliminate the personal liability of its directors for monetary damages resulting
from breaches of their fiduciary duty to the extent permitted by the DGCL and to
indemnify its directors and officers to the fullest extend permitted by Section
145 of the DGCL.
HOLDING COMPANY STATUS
Because most of the Company's business activities and assets are operated
or held by subsidiaries, the right of the Company to participate in any
distribution of assets of any subsidiary upon its liquidation or reorganization
(and thus the ability of the Company's stockholders and other securityholders to
benefit indirectly from such distribution) would be subject to the prior claims
of creditors of that subsidiary, except to the extent that the Company itself
may be a creditor of that subsidiary with recognized claims.
PLAN OF DISTRIBUTION
The Company may sell Securities to or through underwriters or to dealers
acting as principals for their own account and also may sell Securities directly
to other purchasers or through agents. The Company reserves the right to sell
Securities directly to investors on their own behalf in those jurisdictions
where they are authorized to do so.
Underwriters may offer and sell the Securities at a fixed price or prices
that may be changed, at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices. The Company
also may, from time to time, authorize dealers, acting as the Company's agents,
to offer and sell the Securities upon such terms and conditions as set forth in
the related Prospectus Supplement. In connection with the sale of the
Securities, underwriters may receive compensation from the Company in the form
of underwriting discounts or commissions and may also receive commissions from
purchasers of the Securities for whom they may act as agent. Underwriters may
sell the Securities to or through dealers, and such dealers may receive
compensation in the form of discounts, concessions or commissions from the
underwriters and/or commissions from the purchasers for whom they may act as
agents.
Any underwriting compensation paid by the Company to underwriters or agents
in connection with the offering of the Securities, and any discounts,
concessions or commissions allowed by underwriters to participating dealers,
will be set forth in the related Prospectus Supplement. Dealers and agents
participating in the distribution of the Securities may be deemed to be
underwriters, and any discounts and commissions received by them and any profit
realized by them on resale of the Securities may be deemed to be underwriting
discounts and commissions. Underwriters, dealers and agents may be entitled,
under agreements entered into with the Company, to indemnification against and
contribution towards certain civil liabilities.
If so indicated in a Prospectus Supplement, the Company will authorize
underwriters or other persons acting as the Company's agents to solicit offers
by certain institutions to purchase Securities from the Company pursuant to
contracts providing for payment and delivery on a future date. Institutions with
which such contracts may be made include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and charitable
institutions and others, but in all cases such institutions must be approved by
the Company. The obligations of any purchaser under any such contract will be
subject to the condition that the purchase of the Securities shall not at the
time of delivery be prohibited under the laws of the jurisdiction to which such
purchaser is subject. The underwriters and such other agents will not have any
responsibility in respect of the validity or performance of such contracts.
Any Securities issued hereunder (other than Common Stock) will be new
issues of securities with no established trading market. The Company does not
currently intend to apply for the listing of any Securities (other than the
Common Stock) on any national securities exchange. No assurance can be given as
to the liquidity of the trading market for any such Securities.
Certain of the underwriters or agents and their associates may be
customers of, engage in transactions with and perform services for the Company
in the ordinary course of business.
LEGAL MATTERS
The validity of the Securities offered hereby will be passed upon for the
Company by Stroock & Stroock & Lavan LLP, New York, New York, and for any
underwriter or agent by Skadden, Arps, Slate, Meagher & Flom LLP, New York, New
York.
EXPERTS
The audited consolidated financial statements of the Company included in
the Company's Annual Report on Form 10-K and incorporated by reference into this
Prospectus have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their reports with respect thereto, and are
incorporated therein by reference in reliance upon the authority of said firm as
experts in giving said reports.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.*
Securities Act registration fee.....................................$118,000
Printing and engraving expenses.....................................**
Fees and expenses of Trustee, Transfer Agent and Registrar
Accounting fees and expenses........................................**
Legal fees and expenses.............................................**
Blue sky fees and expenses (including fees of counsel)..............**
Rating agency fees and expenses.....................................**
Miscellaneous.......................................................**
Total...............................................................**
* All amounts except the Securities Act registration fee are estimated.
** To be filed by amendment.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Restated Certificate of Incorporation limits the liability of
directors (in their capacity as directors but not in their capacity as officers)
to the Company or its stockholders to the fullest extent permitted by the DGCL.
Specifically, no director of the Company will be personally liable for monetary
damages for breach of the director's fiduciary duty as a director, except for
liability; (i) for any breach of the director's duty of loyalty to the Company
or its stockholders; (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law; (iii) under
Section 174 of the DGCL, which relates to unlawful payments of dividends or
unlawful stock repurchases or redemptions; or (iv) for any transaction from
which the director derived an improper personal benefit. The inclusion of this
provision in the Restated Certificate of Incorporation may have the effect of
reducing the likelihood of derivative litigation against directors, and may
discourage or deter stockholders or management from bringing a lawsuit against
directors for breach of their duty of care, even though such an action, if
successful, might otherwise have benefitted the Company and its stockholders.
Under the Restated Certificate of Incorporation, the Company will indemnify
those persons whom it shall have the power to indemnify to the fullest extent
permitted by Section 145 of the DGCL, which may include liabilities under the
1933 Act. Accordingly, in accordance with Section 145 of the DGCL, the Company
will indemnify any person who was or is a party, or is threatened to be made a
party, to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than a
"derivative" action by or in the right of the Company) by reason of the fact
that such person is or was a director, officer, employee or agent of the
Company, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement in connection with such action, suit or proceeding if
such person acted in good faith and in a manner such person reasonably believed
to be in or not opposed to the best interests of the Company, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe was
unlawful. A similar standard of care is applicable in the case of derivative
actions, except that indemnification only extends to expenses (including
attorneys' fees) incurred in connection with the defense or settlement of such
an action and then, where the person is adjudged to be liable to the Company,
only if and to the extent that the Court of Chancery of the State of Delaware or
the court in which such action was brought determines that such person is fairly
and reasonably entitled to such indemnity and then only for such expenses as the
court deems proper.
The Restated Certificate of Incorporation provides that the Company will
advance expenses to the fullest extent permitted by Section 145 of the DGCL.
Accordingly, the Company, in accordance therewith, will pay for the expenses
incurred by an indemnified person in defending the proceedings specified in the
preceding paragraph in advance of their final disposition, provided that, if the
DGCL so requires, such person agrees to reimburse the Company if it is
ultimately determined that such person is not entitled to indemnification. In
addition, pursuant to the DGCL the Company may purchase and maintain insurance
on behalf of any person who is or was a director, employee or agent of the
Company against any liability asserted against and incurred by such person in
such capacity, or arising out of the person's status as such whether or not the
Company would have the power or obligation to indemnify such person against such
liability under the provisions of DGCL. The Company has obtained insurance for
the benefit of the Company's officers and directors insuring such persons
against certain liabilities, including liabilities under the securities laws.
The Company has entered into agreements to indemnify its outside directors
which are intended to provide the maximum indemnification permitted by Delaware
law. These agreements, among other things, indemnify each of the Company's
outside directors for certain expenses (including attorneys' fees), judgments,
fines and settlement amounts incurred by such director in any action or
proceeding, including any action by or in the right of the Company, on account
of such director's service as a director of the Company.
ITEM 16. EXHIBITS.
EXHIBIT NO. DESCRIPTION
1.1 Form of Underwriting Agreement for Debt Securities*
1.2 Form of Underwriting Agreement for Preferred Stock*
1.3 Form of Underwriting Agreement for Common Stock*
1.4 Form of Distribution Agreement for Medium-Term Notes*
4.1 Form of Indenture for Senior and Subordinated Debt
Securities and Medium-Term Notes*
4.2 Form of Debt Security*
4.3 Form of Medium-Term Note (Fixed Rate)*
4.4 Form of Medium-Term Note (Floating Rate)*
4.5 Form of Certificate for Common Stock, incorporated
herein by reference to Exhibit 4.1 of the
Registrant's Registration Statement on Form S-1
(No. 33-59498)
5.1 Opinion of Stroock & Stroock & Lavan LLP regarding
legality of securities being registered*
12.1 Calculation of Ratios of Earnings to Fixed Charges*
12.2 Calculation of Ratios of Earnings to Combined Fixed
Charges and Preferred Stock Dividends*
23.1 Consent of Stroock & Stroock & Lavan LLP (included
in Exhibit 5.1)
23.2 Consent of Arthur Andersen LLP
24.1 Power of Attorney (included on Page II-6 of this
registration statement)
25.1 Statement of Eligibility of Trustee on Form T-1*
__________________
* To be filed by amendment
Any underwriting agreement or additional form of distribution agreement in
respect of the Securities and any additional form or forms of securities with
respect to each offering of Securities registered hereunder may be filed as an
exhibit to a Current Report on Form 8-K of Interpool, Inc. and will be
incorporated herein by reference.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this 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 this
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this registration statement or any
material change to such information in this registration statement;
PROVIDED, HOWEVER, that the undertakings set forth in paragraphs (i) and
(ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed with 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 this 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.
(4) That, for the purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report pursuant
to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(5) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as a part of
this registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the Registrant pursuant to Rules 424(b)(1) or (4) or
497(h) under the Securities Act of 1933 shall be deemed to be part of this
registration statement as of the time it was declared effective.
(6) For the purpose of determining any liability under the Securities Act
of 1933, each post- effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial BONA FIDE offering thereof.
(7) The undersigned Registrant hereby undertakes (1) to use its best
efforts to distribute prior to the opening of bids, to prospective bidders,
underwriters, and dealers, a reasonable number of copies of a prospectus which
at that time meets the requirements of Section 10(a) of the Securities Act, and
relating to the securities offered at competitive bidding, as contained in the
Registration Statement, together with any supplements thereto, and (2) to file
an amendment to the Registration Statement reflecting the results of bidding,
the terms of the reoffering and related matters to the extent required by the
applicable form, not later than the first use, authorized by the Registrant
after the opening of bids, of a prospectus relating to the securities offered at
competitive bidding, unless no further public offering of such securities by the
Registrant and no reoffering of such securities by the purchasers is proposed to
be made.
(8) To file an application for the purpose of determining the eligibility
of the Trustee to act under Subsection (a) of Section 310 of the Trust Indenture
Act in accordance with the rules and regulations prescribed by the Commission
under Section 305(b)(2) of the Trust Indenture Act.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described in Item 15 above, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the 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.
<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 to file 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 Princeton, State of New Jersey, on the 27th day of January 1998.
INTERPOOL, INC.
By: /s/ Martin Tuchman
MARTIN TUCHMAN
CHAIRMAN AND CHIEF EXECUTIVE
OFFICER
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Martin Tuchman, Raoul J. Witteveen and Richard W.
Gross, and each of them, his true and lawful attorneys-in-fact and agents with
full power of substitution and resubstitution for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) of and supplements to this Registration Statement and
any registration statement relating to any offering made pursuant to this
registration statement that is to be effective upon filing pursuant to Rule
462(b) under the Securities Act and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto such attorneys-in-fact and agents and each of them
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, to all intents and
purposes and as fully as they might or could do in person, hereby ratifying and
confirming all that such attorneys-in-fact and agents, or their substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
/s/ Martin Tuchman Chairman of the Board January 27, 1998
Martin Tuchman and Chief Executive Officer
/s/ Raoul J. Witteveen President, Chief Operating January 27, 1998
Raoul J. Witteveen Officer, Chief Financial Officer
and Director (Principal Financial
Officer)
/s/ Arthur L. Burns Director, Secretary and General January 27, 1998
Arthur L. Burns Counsel
/s/ William Geoghan Controller (Principal Accounting January 27, 1998
William Geoghan Officer)
______________________ Director
Warren L. Serenbetz
/s/ John M. Bucher Director January 27, 1998
John M. Bucher
/s/ Peter D. Halstead Director January 27, 1998
Peter D. Halstead
/s/ Jospeh J. Whalen Director January 27, 1998
Joseph J. Whalen
<PAGE>
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION PAGE NO.
1.1 Form of Underwriting Agreement for Debt Securities*
1.2 Form of Underwriting Agreement for Preferred Stock*
1.3 Form of Underwriting Agreement for Common Stock*
1.4 Form of Distribution Agreement for Medium-Term Notes*
4.1 Form of Indenture for Senior and Subordinated
Debt Securities and Medium-Term Notes*
4.2 Form of Note*
4.3 Form of Medium-Term Note (Fixed Rate)*
4.4 Form of Medium-Term Note (Floating Rate)*
4.5 Form of Certificate for Common Stock,
incorporated herein by reference to Exhibit 4.1
of the Registrant's Registration Statement on
Form S-1 (No. 33-59498)
5.1 Opinion of Stroock & Stroock & Lavan LLP
regarding legality of securities being
registered*
12.1 Calculation of Ratios of Earnings to Fixed
Charges*
12.2 Calculation of Ratios of Earnings to Combined
Fixed Charges and Preferred Stock Dividends*
23.1 Consent of Stroock & Stroock & Lavan LLP
(included in Exhibit 5.1)
23.2 Consent of Arthur Andersen LLP
24.1 Power of Attorney (included on Page II-6 of
this registration statement)
25.1 Statement of Eligibility of Trustee on Form T-1*
_______________
* To be filed by amendment
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANT
To Interpool, Inc.
As independent public accountants, we hereby consent to the use of our report
included in this registration statement and to the incorporation by reference in
this registration statement of our report dated February 18, 1997 included in
Interpool's Form 10-K for the year ended December 31, 1997 and to all references
to our Firm included in this registration statement.
/s/ Arthur Andersen LLP
New York, New York
January 23, 1998
