As filed with the Securities and Exchange Commission on February 2,March 6, 1995
Registration No. 33-33-57577
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
Borden, Inc.
(Exact name of registrant as specified in its charter)
New Jersey 13-0511250
(State or other (I.R.S. Employer
jurisdiction of Identification No.)
incorporation or
organization)
180 East Broad Street
Columbus, Ohio 43215
(614) 225-4000
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
Allan L. Miller, Esq.
Senior Vice President, General Counsel & Secretary
180 East Broad Street
Columbus, Ohio 43215
(614) 225-4000
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copies to:
David J. Sorkin, Esq.
Simpson Thacher &
Bartlett
425 Lexington Avenue
New York, New York 10017
(212) 455-2000
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this registration statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
CALCULATION OF REGISTRATION FEE
Proposed
maximum Proposed
offering maximum
Title of each class Amount to price aggregate Amount of
of securities be per offering registrat
to be registered registered(1) share price(1) ion fee
Debt Securities,
Preferred Stock
and Depositary
Shares(2) . . . . . $2,000,000,000 (3) $2,000,000,000 $689,655.17
(1) In U.S. dollars or the equivalent in foreign currency or currency units.
Estimated solely for purposes of calculating the registration fee.
(2) There are also being registered hereunder Depositary Shares, the number of
which has not yet been determined, to be evidenced by Depositary Receipts
issued pursuant to a Deposit Agreement. In the event the Registrant elects
to offer to the public fractional interests in the Preferred Stock
registered hereunder, Depositary Receipts will be distributed to those
persons purchasing such fractional interests and the Preferred Stock will
be issued to the Depositary under the Deposit Agreement.
(3) The maximum offering price per unit has been omitted pursuant to Securities
Act Release No. 6964. The registration fee has been calculated in
accordance with Regulation 457(o) under the Securities Act of 1933 and
reflects the offering price rather than the principal amount of any Debt
Securities issued at a discount.
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 an 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.
Subject to Completion, Dated February 2,March 6, 1995
PROSPECTUS
BORDEN, INC.
Debt Securities
Preferred Stock
Borden, Inc., a New Jersey corporation (the "Company"), may
offer from time to time (i) unsecured debt securities ("Debt
Securities") consisting of debentures, notes and/or other unsecured
evidences of indebtedness in one or more series or (ii) shares of
preferred stock ("Preferred Stock") in one or more series, which may
be issued in the form of depositary shares evidenced by depositary
receipts (the "Depositary Shares" and, together with the Debt
Securities and the Preferred Stock, the "Securities"), or any
combination of the foregoing, at an aggregate initial offering price
not to exceed $2 billion (or the equivalent thereof if Debt
Securities are denominated in one or more foreign currencies or
foreign currency units), at prices and on terms to be determined at
or prior to the time of sale.
Specific terms of the Securities in respect of which this
Prospectus is being delivered will be set forth in an accompanying
Prospectus Supplement ("Prospectus Supplement"), together with the
terms of the offering of the Securities, the initial offering price
and the net proceeds to the Company from the sale thereof. The
Prospectus Supplement will set forth, among other matters, the
following with respect to the particular Securities: (i) in the case
of Debt Securities, the specific designation, aggregate principal
amount, ranking as senior debt ("Senior Securities") or subordinated
debt ("Subordinated Securities"), authorized denominations, maturity,
rate or method of calculation of interest and dates for payment
thereof, any conversion, redemption, prepayment or sinking fund
provisions, and the currency, currencies or currency units in which
principal, premium, if any, or interest, if any, is payable and (ii)
in the case of Preferred Stock, the designation, number of shares,
liquidation preference and whether Preferred Stock will be
represented by Depositary Shares, initial public offering price,
dividend rate (or method of calculation thereof), dates on which
dividends shall be payable and dates from which dividends shall
accrue, any redemption or sinking fund provisions and any conversion
or exchange rights.
____________________
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 Company may sell Securities directly to purchasers or through agents
designated from time to time by the Company or to or through one or more
underwriters. If any agents of the Company or any underwriters are
involved in the sale of Securities in respect of which this Prospectus is
being delivered, the names of such agents or underwriters and any
applicable commissions or discounts will be set forth in the accompanying
Prospectus Supplement.
The date of this Prospectus is __________, 1995.
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 BE MADE 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 BY 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.
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 and information statements and other
information with the Securities and Exchange Commission (the
"Commission"). The Company has filed with the Commission a registration
statement on Form S-3 (the "Registration Statement") under the Securities
Act of 1933, as amended (the "Securities Act"), with respect to the
Securities offered hereby. This Prospectus, which constitutes a part of
the Registration Statement, does not contain all information set forth in
the Registration Statement and reference is hereby made to the
Registration Statement and the exhibits thereto for further information
with respect to the Company and the Securities offered hereby. Such
reports, proxy and information statements, Registration Statement and
exhibits and other information omitted from this Prospectus can be
inspected and copied at the public reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549,
and at its Regional Offices located at Seven World Trade Center, New York,
New York 10048 and Citicorp Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661-2511. Copies of such material can be obtained at
prescribed rates from the Public Reference Section of the Commission, 450
Fifth Street, N.W., Washington, D.C. 20549. Such reports, proxy and
information statements and other information may also be inspected at the
offices of the New York Stock Exchange, Inc., 20 Broad Street, New York,
New York 10005.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Annual Report of the Company on Form 10-K for the year ended December
31, 1993 (which incorporates by reference certain information from the
Company's Proxy Statement relating to the 1994 Annual Meeting of
Shareholders and the Company's 1993 Annual Report to Shareholders), the
Quarterly Reports of the Company on Form 10-Q for the quarterly periods
ended March 31, 1994, June 30, 1994 (as amended by the Form 10-Q/A
(Amendment No. 1)) and September 30, 1994 (as amended by the Form 10-Q/A
(Amendment No. 1)) and the Current Reports of the Company on Form 8-K
dated January 5, 1994, March 21, 1994, September 11, 1994, September 12,
1994, October 5, 1994 (two reports), December 21, 1994, January 5,10, 1995,
January 11,30, 1995 and January 30,February 21, 1995 are incorporated by reference into
this Prospectus. All documents filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
this Prospectus and prior to the termination of the offering of the
Securities contemplated hereby shall be deemed to be incorporated by
reference into this Prospectus and to be made a part hereof from the
respective dates of filing of such documents. Any statement contained
herein, or in a document incorporated or deemed to be incorporated by
reference herein, shall be deemed to be modified or superseded for purposes
of the Registration Statement and this Prospectus to the extent that a
statement contained herein or in any subsequently filed document which also
is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a
part of the Registration Statement or this Prospectus.
Copies of the above documents (other than exhibits to such documents
unless such exhibits are specifically incorporated by reference into such
documents) may be obtained upon written or oral request without charge
from the Company, 180 East Broad Street, Columbus, Ohio 43215 (telephone
number (614) 225-3395), Attention: Documents Mailing Department.
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THE COMPANY
The Company is engaged primarily in manufacturing, processing, purchasing
and distributing a broad range of products through three operating
sectors: Consumer Packaged Products, Dairy Products, and Packaging and
Industrial Products. Consumer Packaged Products is composed of niche
grocery, pasta products, International Foods products (including European
bakery products, international milk powder, Latin American dairy and
European grocery and pasta) and Diversified Products (including cheese
products, home and professional products and Cracker Jack brand products).
Dairy Products is composed of fluid milk, frozen desserts and cultured
products. Packaging and Industrial Products is composed of decorative
products (principally wallcoverings), adhesives and resins, and plastic
films and packaging and high-technology coatings.
The Company is a party to an Agreement and Plan of Merger, dated as of
September 23, 1994, as amended (the "Merger Agreement"), with Borden
Acquisition Corp. ("BAC") and Whitehall Associates, L.P., affiliates of
Kohlberg Kravis Roberts & Co., L.P. ("KKR"). Pursuant to the Merger
Agreement, following receipt of the approval of holders of 66 2/3% of the
outstanding shares of Common Stock, par value $.625 per share (the "Common
Stock"), of the Company, BAC will be merged with and into the Company,
with the Company as the surviving corporation (the "Merger"). KKR
controls a sufficient number of shares of Common Stock to approve the
Merger. The Merger currently is expected to be consummated, following
receipt of the requisite shareholder approval, in the first half of 1995.
A copy of the Merger Agreement is filed as an exhibit to the Registration
Statement and is incorporated herein by reference; the foregoing
description of the Merger Agreement is qualified in its entirety by such
reference.
The Company was incorporated in New Jersey on April 24, 1899 as the
successor to a business founded in 1857. The Company's principal
executive offices are located at 180 East Broad Street, Columbus, Ohio
43215 (telephone number 614-225-4000).
USE OF PROCEEDS
Except as set forth in the Prospectus Supplement for a specific offering
of Securities, the net proceeds from the sale of the Securities will be
applied by the Company for general corporate purposes.
RATIOS OF EARNINGS TO FIXED CHARGES AND OF EARNINGS TO COMBINED FIXED
CHARGES AND PREFERRED STOCK DIVIDENDS
The following table sets forth the ratios of earnings to fixed charges and
of earnings to combined fixed charges and preferred stock dividends for
the Company and its consolidated subsidiaries for the periods indicated.
December 31,
1993 1992 1991 1990 1989
Ratio of earnings to fixed * 1.1 3.1 3.5 1.2
charges . . . . . . . . . .
Ratio of earnings to
combined fixed charges and * 1.1 3.1 3.5 1.2
preferred stock dividends .
-------------------------------------------
*For the year ended December 31, 1993, fixed charges and combined fixed
charges and preferred stock dividends exceeded earnings by approximately
$51.3 million.
For the purpose of each ratio, "earnings" consist of consolidated net
income plus taxes on income, plus fixed charges, excluding capitalized
interest and excluding preferred stock dividend requirements of majority-
owned subsidiaries and fifty-percent owned persons included in fixed
charges and not deducted in determining consolidated
3
net income and less undistributed income of unconsolidated affiliates
carried on the equity basis. "Fixed charges" consist of interest, whether
expensed or capitalized, amortization of debt expense and discount or
premium relating to any indebtedness, whether expensed or capitalized,
that portion of rentals which is representative of interest and preferred
stock dividend requirements of majority-owned subsidiaries and fifty-
percent owned persons excluding items eliminated in consolidation.
DESCRIPTION OF DEBT SECURITIES
The Senior Securities are to be issued under an indenture to be dated as
of a date prior to the first issuance of Senior Securities, as
supplemented from time to time (the "Senior Indenture"), between the
Company and The Chase Manhattan Bank (National Association), as Trustee,
and the Subordinated Securities are to be issued under an indenture to be
dated as of a date prior to the first issuance of Subordinated Securities,
as supplemented from time to time (the "Subordinated Indenture"), between
the Company and The Bank of New York, as Trustee. The term "Trustee" as
used herein shall refer to either The Chase Manhattan Bank (National
Association) or The Bank of New York, as appropriate, for Senior
Securities or Subordinated Securities. The forms of Senior Indenture and
Subordinated Indenture (being referred to herein collectively as the
"Indentures" and individually as an "Indenture") are filed as exhibits to
the Registration Statement. The Indentures are subject to and governed by
the Trust Indenture Act of 1939, as amended. The statements made under
this heading relating to the Debt Securities and the Indentures are
summaries of the provisions thereof, do not purport to be complete and are
qualified in their entirety by reference to the Indentures, including the
definitions of certain terms therein. Certain capitalized terms used
below but not defined herein have the meanings ascribed to them in the
Indentures. Unless otherwise noted, section references below are to both
Indentures.
General
The Debt Securities will be direct, unsecured obligations of the Company.
The indebtedness represented by the Senior Securities will rank equally
with all other unsecured and unsubordinated indebtedness of the Company.
The indebtedness represented by the Subordinated Securities will be
subordinated in right of payment to the prior payment in full of the
Senior Indebtedness of the Company as described under "Subordination"
below. The Debt Securities may be issued in one or more series. The
particular terms of the Debt Securities being offered (the "Offered Debt
Securities"), any modifications of or additions to the general terms of
the Debt Securities as described herein that may be applicable in the case
of the Offered Debt Securities and any applicable federal income tax
considerations will be described in the Prospectus Supplement relating to
the Offered Debt Securities. Accordingly, for a description of the terms
of the Offered Debt Securities, reference must be made both to the
Prospectus Supplement relating thereto and the description of Debt
Securities set forth in this Prospectus.
The Indenture does not limit the aggregate principal amount of Debt
Securities or other unsecured indebtedness that may be issued or incurred
by the Company or any of its subsidiaries. Other unsecured indebtedness
of the Company or its subsidiaries may contain covenants, events of
default and other provisions which are different from or which are not
contained in the Debt Securities or certain series thereof. Also, unless
otherwise specified in the Prospectus Supplement relating to a series of
Offered Debt Securities, the terms of the Offered Debt Securities will not
afford holders of the Offered Debt Securities protection in the event of a
highly leveraged or other similar transaction involving the Company, or
any other transaction resulting in a decline in ratings on or credit
quality of the Debt Securities, that may adversely affect holders of
Offered Debt Securities.
Certain operations of the Company are conducted through its subsidiaries
and, therefore, the Company is dependent in part on the earnings and cash
flow of its subsidiaries to meet debt obligations, including obligations
under Debt Securities. The claims of holders of Debt Securities
effectively are subordinated to the claims of creditors of the Company's
subsidiaries to the extent of the Company's dependence on its
subsidiaries' earnings and cash flow.
The Prospectus Supplement for the Offered Debt Securities will set forth
the terms of such Debt Securities, which may include the following:
4
(1) The title of such Debt Securities and whether they are Senior
Securities or Subordinated Securities.
(2) The aggregate principal amount of such Debt Securities and any limit
on the aggregate principal amount of Debt Securities of such series.
(3) The percentage of the principal amount at which such Debt Securities
will be issued and, if other than the principal amount thereof, the
portion of the principal amount thereof payable upon declaration of
acceleration of the Maturity thereof or the method by which such portion
shall be determined.
(4) The date or dates on which or periods during which the Debt
Securities of a series may be issued, and the date or dates, or the method
by which such date or dates will be determined, on which the principal of
(and premium, if any, on) such Debt Securities will be payable.
(5) The rate or rates at which such Debt Securities will bear interest,
if any, or the method by which such rate or rates shall be determined, the
date or dates from which such interest, if any, shall accrue or the method
by which such date or dates shall be determined, the interest payment
dates on which such interest will be payable and, in the case of
Registered Securities, the regular record dates, if any, for the interest
payable on such interest payment dates, and, in the case of floating rate
securities, the notice, if any, to Holders regarding the determination of
interest and the manner of giving such notice.
(6) The place or places, if any, in addition to or instead of the
corporate trust office of the applicable Trustee (in the case of
Registered Securities) or the principal London office of the applicable
Trustee (in the case of Bearer Securities), where the principal of (and
premium, if any) and interest on Debt Securities of the series shall be
payable; the extent to which, or the manner in which, any interest payable
on any Global Security on an interest payment date will be paid, and the
manner in which any principal of, or premium, if any, on, any Global
Security will be paid.
(7) The obligation, if any, of the Company to redeem, repay or purchase
Debt Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of the Holder and the period or periods within
which, or the dates on which, the prices at which and the terms and
conditions upon which Debt Securities of the series shall be redeemed,
repaid or purchased, in whole or in part, pursuant to such obligation.
(8) The period or periods within which, or the date or dates on which,
and the terms and conditions upon which Debt Securities may be converted
into or exchanged for securities of the Company or another corporation, if
any, in whole or in part, at the option of the Company or otherwise, and
any specific terms relating to the adjustment thereof.
(9) The period or periods within which, or the date or dates on which, the
price or prices at which, and the terms and conditions upon which Debt
Securities of the series may be redeemed, if any, in whole or in part, at
the option of the Company or otherwise.
(10) If the coin or currency in which the Debt Securities shall be
issuable is U.S. dollars, the denominations of such Debt Securities if
other than denominations of $1,000 and any integral multiple thereof.
(11) Whether the Debt Securities of the series are to be issued as
original issue discount securities ("Discount Securities") and the amount
of discount at which such Debt Securities may be issued and, if other than
the principal amount thereof, the portion of the principal amount of Debt
Securities of the series which shall be payable upon declaration of
acceleration of the Maturity thereof upon an Event of Default.
(12) In the case of Debt Securities which are Registered Securities
denominated and payable only in U.S. dollars, whether the provisions for
the defeasance of Debt Securities of such series will not be applicable
and, in the case of Debt Securities which are denominated in a foreign
currency or currencies or Bearer Securities, provisions, if any, for the
defeasance of Debt Securities of such series.
5
(13) Whether Debt Securities of the series are to be issued as Registered
Securities or Bearer Securities or both, and, if Bearer Securities are
issued, whether any interest coupons appertaining thereto ("Coupons") will
be attached thereto, whether Bearer Securities of the series may be
exchanged for Registered Securities of the series and the circumstances
under which and the place or places at which any such exchanges, if
permitted, may be made.
(14) Whether provisions for payment of additional amounts or tax
redemptions shall apply and, if such provisions shall apply, such
provisions; and, if Bearer Securities of the series are to be issued, the
applicable procedures and certificates relating to the exchange of
temporary Global Securities for definitive Bearer Securities.
(15) If other than U.S. dollars, the currency, currencies or currency
units (the term "currency" as used herein will include currency units) in
which Debt Securities of the series shall be denominated or in which
payment of the principal of (and premium, if any) and interest on the Debt
Securities of the series may be made, and the particular provisions
applicable thereto.
(16) If the principal of (and premium, if any) or interest on Debt
Securities of the series are to be payable, at the election of the Company
or a Holder thereof, in a currency other than that in which the Debt
Securities are denominated or payable without such election, in addition
to or in lieu of the applicable provisions of the Indentures, the period
or periods within which and the terms and conditions upon which, such
election may be made and the time and the manner of determining the
exchange rate or rates between the currency or currencies in which the
Debt Securities are denominated or payable without such election and the
currency or currencies in which the Debt Securities are to be paid if such
election is made.
(17) The date as of which any Debt Securities of the series shall be
dated.
(18) If the amount of payments of principal of (and premium, if any) or
interest on the Debt Securities of the series may be determined with
reference to an index, including, but not limited to, an index based on a
currency or currencies other than that in which the Debt Securities are
denominated or payable, or any other type of index, the manner in which
such amounts shall be determined.
(19) If the Debt Securities of the series are denominated or payable in a
foreign currency, any other terms concerning the payment of principal of
(and premium, if any) or any interest on such Debt Securities (including
the currency or currencies of payment thereof).
(20) Any addition to, or modification or deletion of, any Events of
Default or covenants provided for with respect to Debt Securities of the
series.
(21) If Bearer Securities of the series are to be issued, (x) whether
interest in respect of any portion of a temporary Debt Security in global
form (representing all of the Outstanding Bearer Securities of the series)
payable in respect of any interest payment date prior to the exchange of
such temporary Debt Security for definitive Debt Securities of the series
shall be paid to any clearing organization with respect to the portion of
such temporary Debt Security held for its account and, in such event, the
terms and conditions (including any certification requirements) upon which
any such interest payment received by a clearing organization will be
credited to the Persons entitled to interest payable on such interest
payment date, and (y) the terms upon which interests in such temporary
Debt Security in global form may be exchanged for interests in a permanent
Global Security or for definitive Debt Securities of the series and the
terms upon which interests in a permanent Global Security, if any, may be
exchanged for definitive Debt Securities of the series.
(22) Whether the Debt Securities of the series shall be issued in whole
or in part in the form of one or more Global Securities and, in such case,
the depositary or any common depositary for such Global Securities; and if
the Debt Securities of the series are issuable only as Registered
Securities, the manner in which and the circumstances under which Global
Securities representing Debt Securities of the series may be exchanged for
Registered Securities in definitive form.
6
(23) Any other terms of the series.
Each Indenture provides that the aggregate principal amount of Debt
Securities that may be issued thereunder is unlimited. The Debt
Securities may be issued in one or more series thereunder, in each case as
authorized from time to time by the Board of Directors of the Company, or
any committee thereof or any duly authorized officer. (Section 3.01)
In the event that Discount Securities are issued, the federal income tax
consequences and other special considerations applicable to such Discount
Securities will be described in the Prospectus Supplement relating
thereto.
The general provisions of the Indentures do not contain any provisions
that would limit the ability of the Company to incur indebtedness or that
would afford holders of Debt Securities protection in the event of a
highly leveraged or similar transaction involving the Company. Reference
is made to the Prospectus Supplement related to the Offered Debt
Securities for information with respect to any deletions from,
modifications of or additions to the Events of Default or covenants of the
Company that are described below, including any addition of covenants or
other provisions providing event risk or similar protection.
All of the Debt Securities of a series need not be issued at the same
time, and may vary as to interest rate, maturity and other provisions and,
unless otherwise provided, a series may be reopened for issuance of
additional Debt Securities of such series. (Section 3.01)
Denominations, Registration and Transfer
Unless specified in the Prospectus Supplement, the Debt Securities of any
series shall be issuable only as Registered Securities in denominations of
$1,000 and any integral multiple thereof and shall be payable only in U.S.
dollars. (Section 3.02) The Indentures also provide that Debt Securities
of a series may be issuable in global form. See "Book-Entry Debt
Securities." Unless otherwise indicated in the Prospectus Supplement,
Bearer Securities will have Coupons attached. (Section 2.01)
Registered Securities of any series will be exchangeable for other
Registered Securities of the same series of like aggregate principal
amount and of like Stated Maturity and with like terms and conditions. If
so provided in the Prospectus Supplement, at the option of the Holder
thereof, to the extent permitted by law, any Bearer Security of any series
which by its terms is registrable as to principal and interest may be
exchanged for a Registered Security of such series of like aggregate
principal amount and of a like Stated Maturity and with like terms and
conditions, upon surrender of such Bearer Security at the corporate trust
office of the applicable Trustee or at any other office or agency of the
Company designated for the purpose of making any such exchanges. Subject
to certain exceptions, any Bearer Security issued with Coupons surrendered
for exchange must be surrendered with all unmatured Coupons and any
matured Coupons in default attached thereto. (Section 3.05)
Notwithstanding the foregoing, the exchange of Bearer Securities for
Registered Securities will be subject to the provisions of United States
income tax laws and regulations applicable to Debt Securities in effect at
the time of such exchange. (Section 3.05)
Except as otherwise specified in the Prospectus Supplement, in no event
may Registered Securities, including Registered Securities received in
exchange for Bearer Securities, be exchanged for Bearer Securities.
(Section 3.05)
Upon surrender for registration of transfer of any Registered Security of
any series at the office or agency of the Company maintained for such
purpose, the Company shall deliver, in the name of the designated
transferee, one or more new Registered Securities of the same series of
like aggregate principal amount of such denominations as are authorized
for Registered Securities of such series and of a like Stated Maturity and
with like terms and conditions. No service charge will be made for any
transfer or exchange of Debt Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith. (Section 3.05)
7
The Company shall not be required (i) to register, transfer or exchange
Debt Securities of any series during a period beginning at the opening of
business 15 days before the day of the transmission of a notice of
redemption of Debt Securities of such series selected for redemption and
ending at the close of business on the day of such transmission or (ii) to
register, transfer or exchange any Debt Security so selected for
redemption in whole or in part, except the unredeemed portion of any Debt
Security being redeemed in part. (Section 3.05)
Events of Default
Under the Indentures, "Event of Default" with respect to the Debt
Securities of any series means any one of the following events (whatever
the reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law, pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body): (1) default in the payment of any
interest upon any Debt Security or any payment with respect to the
Coupons, if any, of such series when it becomes due and payable, and
continuance of such default for a period of 30 days; (2) default in the
payment of the principal of (and premium, if any, on) any Debt Security of
such series at its Maturity; (3) default in the deposit of any sinking
fund payment, when and as due by the terms of a Debt Security of such
series; (4) default in the performance, or breach of any covenant or
warranty in the applicable Indenture (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in the
applicable Indenture specifically dealt with or which expressly has been
included in the applicable Indenture solely for the benefit of Debt
Securities of a series other than such series), and continuance of such
default or breach for a period of 60 days after there has been given to
the Company by the applicable Trustee or to the Company and the applicable
Trustee by the Holders of at least 25% in principal amount of the
Outstanding Debt Securities of such series, a written notice specifying
such default or breach and requiring it to be remedied; (5) certain events
of bankruptcy, insolvency or reorganization with respect to the Company;
or (6) any other Event of Default provided with respect to Debt Securities
of that series pursuant to the applicable Indenture. (Section 5.01)
Each Indenture requires the Company to file with the applicable Trustee,
annually, an officers'officer's certificate as to the Company's compliance with all
conditions and covenants under the applicable Indenture. (Section 12.02)
Each Indenture provides that the applicable Trustee may withhold notice to
the Holders of a series of Debt Securities of any default (except payment
defaults on such Debt Securities) if it considers such withholding to be
in the interest of the Holders of such series of Debt Securities to do so.
(Section 6.02)
If an Event of Default with respect to Debt Securities of any series at
the time Outstanding occurs and is continuing, then in every case the
applicable Trustee or the Holders of not less than 25% in principal amount
of the Outstanding Debt Securities of such series may declare the
principal amount (or, if any Debt Securities of such series are Discount
Securities, such portion of the principal amount of such Discount
Securities as may be specified in the terms of such Discount Securities)
of all the Debt Securities of such series to be due and payable
immediately, by a notice in writing to the Company (and to the applicable
Trustee if given by Holders), and upon any such declaration such principal
amount (or specified amount) shall become immediately due and payable.
Upon payment of such amount in the currency in which such Debt Securities
are denominated (except as otherwise provided in the applicable Indenture
or the Prospectus Supplement), all obligations of the Company in respect
of the payment of principal of the Debt Securities of such series shall
terminate. (Section 5.02)
Subject to the provisions of each Indenture relating to the duties of the
applicable Trustee, in case an Event of Default with respect to Debt
Securities of a particular series shall occur and be continuing, the
applicable Trustee shall be under no obligation to exercise any of its
rights or powers under such Indenture at the request, order or direction
of any of the Holders of Debt Securities of that series, unless such
Holders shall have offered to the applicable Trustee reasonable indemnity
against the expenses and liabilities which might be incurred by it in
compliance with such request. (Section 5.07) Subject to such provisions
for the indemnification of the applicable Trustee, the Holders of a
majority in principal amount of the Outstanding Debt Securities of such
series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the applicable
Trustee under such Indenture, or exercising any trust or power conferred
on the applicable Trustee with respect to the Debt Securities of that
series. (Section 5.12)
8
At any time after such a declaration of acceleration with respect to Debt
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the applicable Trustee as
provided in the Indentures, the Holders of a majority in principal amount
of the Outstanding Debt Securities of such series, by written notice to
the Company and the applicable Trustee, may rescind and annul such
declaration and its consequences if (1) the Company has paid or deposited
with the applicable Trustee a sum in the currency in which such Debt
Securities are denominated (except as otherwise provided in the applicable
Indenture or the Prospectus Supplement) sufficient to pay (A) all overdue
installments of interest on all Debt Securities or all overdue payments
with respect to any Coupons of such series, (B) the principal of (and
premium, if any, on) any Debt Securities of such series which have become
due otherwise than by such declaration of acceleration and interest
thereon at the rate or rates prescribed therefor in such Debt Securities;
(C) to the extent that payment of such interest is lawful, interest upon
overdue installments of interest on each Debt Security of such series or
upon overdue payments on any Coupons of such series at a rate established
for such series, and (D) all sums paid or advanced by the applicable
Trustee and the reasonable compensation, expenses, disbursements and
advances of the applicable Trustee, its agents and counsel; and (2) all
Events of Default with respect to Debt Securities of such series, other
than the nonpayment of the principal of Debt Securities of such series
which have become due solely by such declaration of acceleration, have
been cured or waived as provided in the Indentures. No such rescission
and waiver will affect any subsequent default or impair any right
consequent thereon. (Section 5.02)
Merger or Consolidation
Each Indenture provides that the Company may not consolidate with or merge
into any other corporation or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, unless (1) the
corporation formed by such consolidation or into which the Company is
merged or the Person which acquires by conveyance or transfer, or which
leases, the properties and assets of the Company substantially as an
entirety (the "successor corporation") is a corporation organized and
existing under the laws of the United States or any State or the District
of Columbia and expressly assumes by a supplemental indenture the due and
punctual payment of the principal of (and premium, if any) and interest on
all the Debt Securities and the performance of every covenant of the
Indentures on the part of the Company to be performed or observed; and (2)
immediately after giving effect to such transaction, no Event of Default,
and no event which, after notice or lapse of time, or both, would become
an Event of Default, shall have happened and be continuing. The
applicable Trustee may request, in accordance with the applicable
Indenture, an officers' certificate and an opinion of counsel stating that
such consolidation, merger, conveyance, transfer or lease and such
supplemental indenture comply with the applicable Indenture provisions and
that all conditions precedent therein provided for relating to such
transaction have been complied with. (Section 10.01)
Modification or Waiver
Without the consent of any Holders, the Company and the applicable
Trustee, at any time and from time to time, may modify the applicable
Indenture for any of the following purposes: (1) to evidence the
succession of another corporation to the Company and the assumption by
such successor of the covenants of the Company in the Indentures and in
the Debt Securities; (2) to add to the covenants of the Company, for the
benefit of the Holders of all or any series of Debt Securities and the
Coupons, if any, appertaining thereto (and if such covenants are to be for
the benefit of less than all series, stating that such covenants are
expressly being included solely for the benefit of such series), or to
surrender any right or power conferred in the Indentures upon the Company;
(3) to add any additional Events of Default (and if such Events of Default
are to be applicable to less than all series, stating that such Events of
Default are expressly being included solely to be applicable to such
series); (4) to add or change any of the provisions of the applicable
Indenture to such extent as shall be necessary to permit or facilitate the
issuance of Debt Securities of any series in bearer form, registrable or
not registrable, and with or without Coupons, to permit Bearer Securities
to be issued in exchange for Registered Securities, to permit Bearer
Securities to be issued in exchange for Bearer Securities of other
authorized denominations or to permit the issuance of Debt Securities of
any series in uncertificated form, provided that any such action shall not
materially adversely affect the interests of the Holders of Debt
Securities of any series or any related Coupons in any material respect;
(5) to change or eliminate any of the provisions of the applicable
Indenture, provided that any such change or elimination will become
effective
9
only when there is no Outstanding Debt Security or Coupon of any series
created prior to such modification which is entitled to the benefit of
such provision and as to which such modification would apply; (6) to
secure the Debt Securities; (7) to supplement any of the provisions of the
applicable Indenture to such extent as is necessary to permit or
facilitate the defeasance and discharge of any series of Debt Securities,
provided that any such action will not materially adversely affect the
interests of the Holders of Debt Securities of such series or any other
series of Debt Securities or any related Coupons in any material respect;
(8) to establish the form or terms of Debt Securities and Coupons, if any,
of any series as permitted by the applicable Indenture; (9) to evidence
and provide for the acceptance of appointment thereunder by a successor
Trustee with respect to one or more series of Debt Securities and to add
to or change any of the provisions of the Indentures as is necessary to
provide for or facilitate the administration of the trusts thereunder by
more than one Trustee; or (10) to cure any ambiguity, to correct or
supplement any provision therein which may be defective or inconsistent
with any other provision therein, or to make any other provisions with
respect to matters or questions arising under the applicable Indenture
which will not be inconsistent with any provision of the applicable
Indenture, or to make any other change; provided such other provisions or
changes shall not materially adversely affect the interests of the Holders
of Outstanding Debt Securities or Coupons, if any, of any series created
prior to such modification in any material respect. (Section 11.01)
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Debt Securities of each series affected by such
modification voting separately, the Company and the applicable Trustee may
modify the applicable Indenture for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the
applicable Indenture or of modifying in any manner the rights of the
Holders under the applicable Indenture of such Debt Securities; provided,
however, that no such modification may, without the consent of the Holder
of each Outstanding Debt Security of each such series affected thereby,
(1) change the Stated Maturity of the principal of, or any installment of
interest on, any Debt Security, or reduce the principal amount thereof or
the interest thereon or any premium payable upon redemption thereof, or
change the Stated Maturity of or reduce the amount of any payment to be
made with respect to any Coupon, or change the currency or currencies in
which the principal of (and premium, if any) or interest on such Debt
Security is denominated or payable, or reduce the amount of the principal
of a Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof, or adversely affect the right of
repayment or repurchase, if any, at the option of the Holder, or reduce
the amount of, or postpone the date fixed for, any payment under any
sinking fund or analogous provisions for any Debt Security, or impair the
right to institute suit for the enforcement of any payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or limit the obligation of the Company to maintain a
paying agency outside the United States for payments on Bearer Securities;
(2) reduce the percentage in principal amount of the Outstanding Debt
Securities of any series, the consent of whose Holders is required for any
supplemental indenture, or the consent of whose Holders is required for
any waiver of compliance with certain provisions of the Indentures or
certain defaults thereunder and their consequences provided for in the
Indentures; (3) modify any of the provisions of the applicable Indenture
relating to modifications and waivers of defaults and covenants, except to
increase any such percentage or to provide that certain other provisions
of the applicable Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Debt Security of each series
affected thereby; or (4) in the case of the Subordinated Indenture, modify
any of the provisions relating to the subordination of the Subordinated
Securities in a manner adverse to the Holders thereof. (Section 11.02)
A modification which changes or eliminates any covenant or other provision
of the applicable Indenture with respect to one or more particular series
of Debt Securities and Coupons, if any, or which modifies the rights of
the Holders of Debt Securities and Coupons of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights
under the applicable Indenture of the Holders of Debt Securities and
Coupons, if any, of any other series. (Section 11.02)
In the case of the Subordinated Indenture, no modification may adversely
affect the rights of any holder of Senior Indebtedness under the
subordination provisions of the Subordinated Indenture without the consent
of such holder. (Section 11.08 of the Subordinated Indenture)
10
The Holders of not less than a majority in principal amount of the
Outstanding Debt Securities of any series may on behalf of the Holders of
all the Debt Securities of any such series waive any past default under
the applicable Indenture with respect to such series and its consequences,
except a default (1) in the payment of the principal of (or premium, if
any) or interest on any Debt Security of such series, or in the payment of
any sinking fund installment or analogous obligation with respect to the
Debt Securities of such series, or (2) in respect of a covenant or
provision hereof which pursuant to the second paragraph under
"Modification and Waiver" cannot be modified or amended without the
consent of the Holder of each Outstanding Debt Security of such series
affected. Upon any such waiver, such default will cease to exist, and any
Event of Default arising therefrom will be deemed to have been cured, for
every purpose of the Debt Securities of such series under the applicable
Indenture, but no such waiver will extend to any subsequent or other
default or impair any right consequent thereon. (Section 5.13)
The Company may omit in any particular instance to comply with certain
covenants in the Indentures (including, if so specified in the Prospectus
Supplement, any covenant not set forth in the Indentures but specified in
the Prospectus Supplement to be applicable to the Debt Securities of any
series, except as otherwise provided in the Prospectus Supplement) with
respect to the Debt Securities of any series if before the time for such
compliance the Holders of at least a majority in principal amount of the
Outstanding Debt Securities of such series either waive such compliance in
such instance or generally waive compliance with such provisions, but no
such waiver may extend to or affect any term, provision or condition
except to the extent expressly so waived, and, until such waiver becomes
effective, the obligations of the Company and the duties of the applicable
Trustee in respect of any such provision will remain in full force and
effect. (Section 12.09)12.07)
Subordination
Upon any distribution of assets of the Company upon the dissolution,
winding up, liquidation or reorganization of the Company, the payment of
the principal of (and premium, if any) and interest on the Subordinated
Securities will be subordinated to the extent provided in the Subordinated
Indenture in right of payment to the prior payment in full of all Senior
Indebtedness, including Senior Securities (Sections 16.01 and 16.02 of the
Subordinated Indenture), but the obligation of the Company to make payment
of principal (and premium, if any) or interest on the Subordinated
Securities will not otherwise be affected. (Section 16.02 of the
Subordinated Indenture) No payment on account of principal (or premium, if
any), sinking fund or interest may be made on the Subordinated Securities
at any time when there is a default in the payment of principal, premium,
if any, sinking fund or interest on Senior Indebtedness. (Section 16.03
of the Subordinated Indenture) In the event that, notwithstanding the
foregoing, any payment by the Company described in the foregoing sentence
is received by the Trustee under the Subordinated Indenture or the Holders
of any of the Subordinated Securities before all Senior Indebtedness is
paid in full, such payment or distribution shall be paid over to the
holders of such Senior Indebtedness or on their behalf for application to
the payment of all such Senior Indebtedness remaining unpaid until all
such Senior Indebtedness shall have been paid in full, after giving effect
to any concurrent payment or distribution to the holders of such Senior
Indebtedness. Subject to payment in full of Senior Indebtedness, the
Holders of the Subordinated Securities will be subrogated to the rights of
the holders of the Senior Indebtedness to the extent of payments made to
the holders of such Senior Indebtedness out of the distributive share of
the Subordinated Securities. (Section 16.02 of the Subordinated
Indenture)
By reason of such subordination, in the event of a distribution of assets
upon insolvency, certain general creditors of the Company may recover
more, ratably, than Holders of the Subordinated Securities. The
Subordinated Indenture provides that the subordination provisions thereof
shall not apply to money and securities held in trusts pursuant to the
satisfaction and discharge and the legal defeasance provisions of the
Subordinated Indenture. (Sections 4.02 and 15.02 of the Subordinated
Indenture)
If this Prospectus is being delivered in connection with the offering of a
series of Subordinated Securities, the accompanying Prospectus Supplement
or the information incorporated by reference will set forth the
approximate amount of Senior Indebtedness outstanding as of a recent date.
11
Discharge, Legal Defeasance and Covenant Defeasance
The applicable Indenture with respect to the Debt Securities of any series
may be discharged, subject to certain terms and conditions, when (1)
either (A) all Debt Securities and the Coupons, if any, of such series
have been delivered to the applicable Trustee for cancellation, or (B) all
Debt Securities and the Coupons, if any, of such series not theretofore
delivered to the applicable Trustee for cancellation (i) have become due
and payable, (ii) will become due and payable at their Stated Maturity
within one year, or (iii) are to be called for redemption within one year
under arrangements satisfactory to the applicable Trustee for the giving
of notice by the applicable Trustee, and the Company, in the case of (i),
(ii) or (iii) of subclause (B), has irrevocably deposited or caused to be
deposited with the applicable Trustee as trust funds in trust for such
purpose an amount in the currency in which such Debt Securities are
denominated sufficient to pay and discharge the entire indebtedness on
such Debt Securities for principal (and premium, if any) and interest to
the date of such deposit (in the case of Debt Securities which have become
due and payable) or to the Stated Maturity or Redemption Date, as the case
may be; provided, however, in the event a petition for relief under
applicable federal bankruptcy, insolvency or other similar law is filed
with respect to the Company within 91 days after the deposit and the
applicable Trustee is required to return the deposited money to the
Company, the obligations of the Company under the applicable Indenture
with respect to such Debt Securities will not be deemed terminated or
discharged; (2) the Company has paid or caused to be paid all other sums
payable under the applicable Indenture by the Company; (3) the Company has
delivered to the applicable Trustee an officers' certificate and an
opinion of counsel each stating that all conditions precedent therein
provided relating to the satisfaction and discharge of the applicable
Indenture with respect to such series have been complied with; (4) if the
Debt Securities of such series are then listed on any national securities
exchange, the Company shall have delivered to the applicable Trustee an
opinion of counsel or a letter or other document from such exchange to the
effect that the discharge of the Debt Securities of such series would not
cause such Debt Securities to be delisted; and (5) the Company has
delivered to the applicable Trustee an opinion of counsel or a ruling of
the Internal Revenue Service to the effect that Holders of the Debt
Securities of the series will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit and discharge.
(Section 4.01)
If provision is made for the defeasance of Debt Securities of a series,
and if the Debt Securities of such series are Registered Securities and
denominated and payable only in U.S. dollars, then the provisions of each
Indenture relating to defeasance shall be applicable except as otherwise
specified in the Prospectus Supplement for Debt Securities of such series.
Defeasance provisions, if any, for Debt Securities denominated in a
foreign currency or currencies or for Bearer Securities may be specified
in the Prospectus Supplement. (Section 15.01)
At the Company's option, either (a) the Company shall be deemed to have
been Discharged (as defined below) from its obligations with respect to
Debt Securities of any series ("legal defeasance option") or (b) the
Company shall cease to be under any obligation to comply with certain
provisions of the Indentures relating to mergers and consolidations of the
Company, with respect to Debt Securities of any series (and, if so
specified, any other obligation of the Company or restrictive covenant
added for the benefit of such series) ("covenant defeasance option") at
any time after the applicable conditions set forth below have been
satisfied: (1) the Company shall have deposited or caused to be deposited
irrevocably with the applicable Trustee as trust funds in trust for, and
dedicated solely to, the benefit of the Holders of the Debt Securities of
such series (i) money in an amount, or (ii) U.S. Government Obligations
which through the payment of interest and principal in respect thereof in
accordance with their terms will provide, not later than one day before
the due date of any payment, money in an amount, or (iii) a combination of
(i) and (ii), sufficient, in the opinion (with respect to (i) and (ii)) of
a nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the applicable Trustee, to
pay and discharge each installment of principal (including any mandatory
sinking fund payments) of and premium, if any, and interest on, the
Outstanding Debt Securities of such series on the dates such installments
of interest or principal and premium are due; (2) such deposit shall not
cause the applicable Trustee with respect to the Debt Securities of that
series to have a conflicting interest with respect to the Debt Securities
of any series; (3) such deposit will not result in a breach or violation
of, or constitute a default under, the applicable Indenture or any other
agreement or instrument to which the Company is a party or by which it is
bound; (4) if the Debt Securities of such series are then listed on any
national securities exchange, the Company shall have delivered to the
applicable Trustee an opinion of counsel or a letter or other document
from such exchange to the effect that the Company's exercise of its legal
12
defeasance option or the covenant defeasance option, as the case may be,
would not cause such Debt Securities to be delisted; (5) no Event of
Default or event (including such deposit) which, with notice or lapse of
time or both, would become an Event of Default with respect to the Debt
Securities of such series shall have occurred and be continuing on the
date of such deposit and, with respect to the legal defeasance option
only, no Event of Default under the provisions of the Indentures relating
to certain events of bankruptcy or insolvency or event which with the
giving of notice or lapse of time, or both, would become an Event of
Default under such bankruptcy or insolvency provisions shall have occurred
and be continuing on the 91st day after such date; and (6) the Company
shall have delivered to the applicable Trustee an opinion of counsel or a
ruling of the Internal Revenue Service to the effect that the Holders of
the Debt Securities of such series will not recognize income, gain or loss
for federal income tax purposes as a result of such deposit, defeasance or
Discharge. Notwithstanding the foregoing, if the Company exercises its
covenant defeasance option and an Event of Default under the provisions of
the Indentures relating to certain events of bankruptcy or insolvency or
event which with the giving of notice or lapse of time, or both, would
become an Event of Default under such bankruptcy or insolvency provisions
shall have occurred and be continuing on the 91st day after the date of
such deposit, the obligations of the Company referred to under the
definition of covenant defeasance option with respect to such Debt
Securities shall be reinstated. (Section 15.02)
Payment and Paying Agents
If Debt Securities of a series are issuable only as Registered Securities,
the Company will maintain in each Place of Payment for such series an
office or agency where Debt Securities of that series may be presented or
surrendered for payment, where Debt Securities of that series may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Debt Securities of that
series and the applicable Indenture may be served. If Debt Securities of
a series are issuable as Bearer Securities, the Company will maintain (A)
in the Borough of Manhattan, The City and State of New York, an office or
agency where any Registered Securities of that series may be presented or
surrendered for payment, where any Registered Securities of that series
may be surrendered for registration of transfer, where Debt Securities of
that series may be surrendered for exchange, where notices and demands to
or upon the Company in respect of the Debt Securities of that series and
the applicable Indenture may be served and where Bearer Securities of that
series and related Coupons may be presented or surrendered for payment in
the circumstances described in the following paragraph (and not
otherwise), (B) subject to any laws or regulations applicable thereto, in
a Place of Payment for that series which is located outside the United
States, an office or agency where Debt Securities of that series and
related Coupons may be presented and surrendered for payment (including
payment of any additional amounts payable on Debt Securities of that
series, if so provided in such series); provided, however, that if the
Debt Securities of that series are listed on The Stock Exchange of the
United Kingdom and the Republic of Ireland, the Luxembourg Stock Exchange
or any other stock exchange located outside the United States and such
stock exchange shall so require, the Company will maintain a Paying Agent
for the Debt Securities of that series in London, Luxembourg or any other
required city located outside the United States, as the case may be, so
long as the Debt Securities of that series are listed on such exchange,
and (C) subject to any laws or regulations applicable thereto, in a Place
of Payment for that series located outside the United States an office or
agency where any Registered Securities of that series may be surrendered
for registration of transfer, where Debt Securities of that series may be
surrendered for exchange and where notices and demands to or upon the
Company in respect of the Debt Securities of that series and the
applicable Indenture may be served. The Company will give prompt written
notice to the applicable Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail
to maintain any such required office or agency or shall fail to furnish
the applicable Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the corporate
trust office of the applicable Trustee (in the case of Registered
Securities) and at the principal London office of the applicable Trustee
(in the case of Bearer Securities), and the Company has appointed the
applicable Trustee as its agent to receive all presentations, surrenders,
notices and demands. (Section 12.03)
No payment of principal, premium or interest on Bearer Securities shall be
made at any office or agency of the Company in the United States or by
check mailed to any address in the United States or by transfer to an
account maintained with a bank located in the United States; provided,
however, that, if the Debt Securities of a series are denominated and
payable in U.S. dollars, payment of principal of and any premium and
interest on Debt Securities
13
of such series, if so provided in the Prospectus Supplement shall be made
at the office of the Company's Paying Agent in the Borough of Manhattan,
the City and State of New York, if (but only if) payment in U.S. dollars
of the full amount of such principal, premium, interest or additional
amounts, as the case may be, at all offices or agencies outside the United
States maintained for the purpose by the Company in accordance with the
applicable Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions. (Section 12.03)
Book-Entry Debt Securities
The Debt Securities of a series may be issued in whole or in part in
global form that will be deposited with, or on behalf of, a depositary
identified in the Prospectus Supplement. Global securities may be issued
in either registered or bearer form and in either temporary or permanent
form (each a "Global Security"). Payments of principal of (premium, if
any) and interest on Debt Securities represented by a Global Security will
be made by the Company to the applicable Trustee and then by such Trustee
to the depositary.
The Company anticipates that any Global Securities will be deposited with,
or on behalf of, The Depository Trust Company, New York, New York ("DTC"),
that such Global Securities will be registered in the name of DTC's
nominee, and that the following provisions will apply to the depositary
arrangements with respect to any such Global Securities. Additional or
differing terms of the depositary arrangements will be described in the
Prospectus Supplement relating to a particular series of Debt Securities
issued in the form of Global Securities.
So long as DTC or its nominee is the registered owner of a Global
Security, DTC or its nominee, as the case may be, will be considered the
sole Holder of the Debt Securities represented by such Global Security for
all purposes under the applicable Indenture. Except as provided below,
owners of beneficial interests in a Global Security will not be entitled
to have Debt Securities represented by such Global Security registered in
their names, will not receive or be entitled to receive physical delivery
of Debt Securities in certificated form and will not be considered the
owners or Holders thereof under the applicable Indenture. The laws of
some states require that certain purchasers of securities take physical
delivery of such securities in certificated form; accordingly, such laws
may limit the transferability of beneficial interests in a Global
Security.
If DTC is at any time unwilling or unable to continue as depositary and a
successor depositary is not appointed by the Company within 90 days, the
Company will issue individual Debt Securities in certificated form in
exchange for the Global Securities. In addition, the Company may at any
time, and in its sole discretion, determine not to have any Debt
Securities represented by one or more Global Securities and, in such
event, will issue individual Debt Securities in certificated form in
exchange for the relevant Global Securities. If Registered Securities of
any series shall have been issued in the form of one or more Global
Securities and if an Event of Default with respect to the Debt Securities
of such series shall have occurred and be continuing, the Company will
issue individual Debt Securities in certificated form in exchange for the
relevant Global Securities.
The following is based on information furnished by DTC:
DTC will act as securities depositary for the Debt Securities. The Debt
Securities will be issued as fully registered securities registered in the
name of Cede & Co. (DTC's partnership nominee). One fully registered Debt
Security certificate is issued with respect to each $150 million of
principal amount of the Debt Securities of a series, and an additional
certificate will be issued with respect to any remaining principal amount
of such series.
DTC is a limited-purpose trust company organized under the Banking Law of
the State of New York, a "banking organization" within the meaning of the
Banking Law of the State of New York, a member of the Federal Reserve
System, a "clearing corporation" within the meaning of the New York
Uniform Commercial Code, and a "clearing agency" registered pursuant to
the provisions of Section 17A of the Exchange Act. DTC holds securities
that its participants ("Participants") deposit with DTC. DTC also
facilitates the settlement among Participants of securities transactions,
such as transfers and pledges, in deposited securities through electronic
computerized book-entry changes in Participants' accounts, thereby
eliminating the need for physical movement of securities certificates.
Direct Participants include securities brokers and dealers, banks, trust
companies, clearing corporations and certain other organizations ("Direct
Participants"). DTC is owned by a number of its Direct Participants and
14
by the New York Stock Exchange, Inc., the American Stock Exchange, Inc.
and the National Association of Securities Dealers, Inc. Access to the
DTC system is also available to others such as securities brokers and
dealers, banks and trust companies that clear through or maintain a
custodial relationship with a Direct Participant, either directly or
indirectly ("Indirect Participants"). The rules applicable to DTC and its
Participants are on file with the Commission.
Purchases of Debt Securities under the DTC system must be made by or
through Direct Participants, which will receive a credit for the Debt
Securities on DTC's records. The ownership interest of each actual
purchaser of each Debt Security ("Beneficial Owner") is in turn recorded
on the Direct and Indirect Participants' records. A Beneficial Owner does
not receive written confirmation from DTC of its purchase, but such
Beneficial Owner is expected to receive a written confirmation providing
details of the transaction, as well as periodic statements of its
holdings, from the Direct or Indirect Participant through which such
Beneficial Owner entered into the transaction. Transfers of ownership
interests in Debt Securities are accomplished by entries made on the books
of Participants acting on behalf of Beneficial Owners. Beneficial Owners
do not receive certificates representing their ownership interests in Debt
Securities, except in the event that use of the book-entry system for the
Debt Securities is discontinued.
To facilitate subsequent transfers, the Debt Securities are registered in
the name of DTC's partnership nominee, Cede & Co. The deposit of the Debt
Securities with DTC and their registration in the name of Cede & Co.
effects no change in beneficial ownership. DTC has no knowledge of the
actual Beneficial Owners of the Debt Securities; DTC records reflect only
the identity of the Direct Participants to whose accounts Debt Securities
are credited, which may or may not be the Beneficial Owners. The
Participants remain responsible for keeping account of their holdings on
behalf of their customers.
Delivery of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by
Direct Participants and Indirect Participants to Beneficial Owners are
governed by arrangements among them, subject to any statutory or
regulatory requirements as may be in effect from time to time.
Neither DTC nor Cede & Co. will consent or vote with respect to the Debt
Securities. Under its usual procedures, DTC mails a proxy (an "Omnibus
Proxy") to the issuer as soon as possible after the record date. The
Omnibus Proxy assigns Cede & Co.'s consenting or voting rights to those
Direct Participants to whose accounts the Debt Securities are credited on
the record date (identified on a list attached to the Omnibus Proxy).
Principal and interest payments on the Debt Securities will be made to
DTC. DTC's practice is to credit Direct Participants' accounts on the
payable date in accordance with their respective holdings as shown on
DTC's records unless DTC has reason to believe that it will not receive
payment on the payable date. Payments by Participants to Beneficial
Owners will be governed by standing instructions and customary practices,
as is the case with securities held for the accounts of customers in
bearer form or registered in "street name," and will be the responsibility
of such Participant and not of DTC, the Paying Agent or the Company,
subject to any statutory or regulatory requirements as may be in effect
from time to time. Payment of principal and interest to DTC is the
responsibility of the Company or the Paying Agent, disbursement of such
payments to Direct Participants is the responsibility of DTC, and
disbursement of such payments to the Beneficial Owners is the
responsibility of Direct and Indirect Participants.
DTC may discontinue providing its services as securities depositary with
respect to the Debt Securities at any time by giving reasonable notice to
the Company or the Paying Agent. Under such circumstances, in the event
that a successor securities depositary is not appointed, Debt Security
certificates are required to be printed and delivered.
The Company may decide to discontinue use of the system of book-entry
transfers through DTC (or a successor securities depositary). In that
event, Debt Security certificates will be printed and delivered.
15
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources (including DTC) that the Company believes
to be reliable, but the Company takes no responsibility for the accuracy
thereof.
Unless stated otherwise in the Prospectus Supplement, the underwriters or
agents with respect to a series of Debt Securities issued as Global
Securities will be Direct Participants in DTC.
None of the Company, any underwriter or agent, the applicable Trustee or
any applicable Paying Agent will have the responsibility or liability for
any aspect of the records relating to or payments made on account of
beneficial interests in a Global Security, or for maintaining, supervising
or reviewing any records relating to such beneficial interests.
The Trustees under the Indentures
Each of the Trustees, The Chase Manhattan Bank (National Association) and
The Bank of New York, maintains ordinary banking relationships with the
Company and the Company from time to time has, and may in the future,
obtain credit facilities and lines of credit from either or both of the
Trustees.
Certain Definitions
Set forth below is a summary of certain defined terms used in the
applicable Indenture. Reference is made to the applicable Indenture for
the full definition of all such terms.
"Discharged" means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under,
the Debt Securities of such series and to have satisfied all the
obligations under the applicable Indenture relating to the Debt Securities
of such series, except (i) the rights of Holders of Debt Securities of
such series to receive, from the trust fund described under "Discharge,
Legal Defeasance and Covenant Defeasance" above, payment of the principal
of (and premium, if any) and interest on such Debt Securities when such
payments are due, (ii) the Company's obligations with respect to the Debt
Securities of such series under the provisions relating to exchanges,
transfers and replacement of Debt Securities, the maintenance of an office
or agency of the Company and the defeasance trust fund and (iii) the
rights, powers, trusts, duties and immunities of the applicable Trustee
thereunder. (Section 15.02)
"Indebtedness" means (i) any liability of any Persons (a) for borrowed
money, or (b) evidenced by a bond, note, debenture or similar instrument
(including purchase money obligations but excluding trade payables), or
(c) for the payment of money relating to a lease that is required to be
classified as a capitalized lease obligation in accordance with generally
accepted accounting principles, or (d) preferred or preference stock of a
Subsidiary of the Company held by Persons other than the Company or a
Subsidiary of the Company; (ii) any liability of others described in the
preceding clause (i) that the Person has guaranteed, that is recourse to
such Person or that is otherwise its legal liability; and (iii) any
amendment, supplement, modification, deferral, renewal, extension or
refunding of any liability of the types referred to in clauses (i) and
(ii) above. (Section 1.01)
"Senior Indebtedness" means the principal of (and premium, if any) and
unpaid interest on (i) Indebtedness of the Company, whether outstanding on
the date of the Subordinated Indenture or thereafter created, incurred,
assumed or guaranteed, for money borrowed (other than the Indebtedness
evidenced by the Subordinated Securities), unless in the instrument
creating or evidencing the same or pursuant to which the same is
outstanding it is provided that such Indebtedness is not senior or prior
in right of payment to the Subordinated Securities or is pari passu or
subordinate by its terms in right of payment to the Subordinated
Securities, and (ii) renewals, extensions and modifications of any such
Indebtedness. (Section 16.01 of the Subordinated Indenture)
"Subsidiary" means any corporation of which at least a majority of the
outstanding stock having by the terms thereof ordinary voting power to
elect a majority of the directors of such corporation, irrespective of
whether or not at the time stock of any other class or classes of such
corporation shall have or might have voting power by reason
16
of the happening of any contingency, is at the time, directly or
indirectly, owned or controlled by the Company or by one or more
Subsidiaries thereof, or by the Company and one or more Subsidiaries.
(Section 1.01)
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States for the payment of which its full faith
and credit is pledged, or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United
States the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States, which, in either case under
clauses (i) or (ii), are not callable or redeemable at the option of the
issuer thereof, and shall also include a depository receipt issued by a
bank or trust company as custodian with respect to any such U.S.
Government Obligation or a specific payment of interest on or principal of
any such U.S. Government Obligation held by such custodian for the account
of the holder of a depository 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 U.S. Government Obligation or
the specific payment of interest on or principal of the U.S. Government
Obligation evidenced by such depository receipt. (Section 15.02)
"Wholly Owned Subsidiary" means a Subsidiary of which all of the
outstanding voting stock (other than directors' qualifying shares) is at
the time, directly or indirectly, owned by the Company, or by one or more
Wholly Owned Subsidiaries of the Company or by the Company and one or more
Wholly Owned Subsidiaries. (Section 1.01)
DESCRIPTION OF PREFERRED STOCK
After giving effect to the Merger, the Company's capital stock will
consist of 300 million shares of Common Stock, par value $.01 per share,
and 100 million shares of Preferred Stock. The number of issued and
outstanding shares of Preferred Stock as of a then recent date will be set
forth in an accompanying Prospectus Supplement relating to any issuance of
shares of Preferred Stock. The following summary description of the
Preferred Stock of the Company does not purport to be complete and is
qualified in its entirety by reference to the form of the Company's
Restated Certificate of Incorporation, a copy of which is filed as an
exhibit to the Registration Statement, which will become effective in
connection with the consummation of the Merger (the "Post-Merger
Certificate of Incorporation"), and to the New Jersey Business Corporation
Act. A description of the Company's capital stock as in effect prior to
the consummation of the Merger is incorporated herein by reference. See
"Available Information."
Under the Post-Merger Certificate of Incorporation, the Company may issue,
in one or more classes or series, shares of its Preferred Stock, with such
powers, preferences and relative, participating, optional or other special
rights and qualifications, limitations or restrictions as shall be
designated in resolutions adopted by the Board of Directors or a duly
authorized committee thereof. The Preferred Stock will, when issued, be
fully paid and non-assessable and holders thereof will have no preemptive
rights.
The specific terms of any Preferred Stock being offered (the "Offered
Preferred Stock") will be described in the Prospectus Supplement relating
to such Offered Preferred Stock. The following summaries of certain
provisions of the Preferred Stock do not purport to be complete and are
subject to, and are qualified in their entirety by reference to, the
Company's Restated Certificate of Incorporation as then in effect and the
amendment thereto relating to the particular class or series of Preferred
Stock. Reference is made to the Prospectus Supplement relating to the
Offered Preferred Stock offered thereby for specific terms, including:
(1) The designation of such Preferred Stock.
(2) The number of shares of such Preferred Stock offered, the liquidation
preference per share, whether such Preferred Stock will be represented by
Depositary Shares and the initial offering price of such Preferred Stock.
(3) The dividend rate(s), period(s) and/or payment date(s) or method(s)
of calculation thereof applicable to such Preferred Stock.
17
(4) The date from which dividends on such Preferred Stock shall
accumulate, if applicable.
(5) The procedures for any auction and remarketing, if any, of such
Preferred Stock.
(6) The provision of a sinking fund, if any, for such Preferred Stock.
(7) The provision for redemption, if applicable, of such Preferred Stock.
(8) Any listing of such Preferred Stock on any securities exchange.
(9) The terms and conditions, if applicable, upon which such Preferred
Stock will be convertible into or exchangeable for shares of other classes
or series of capital stock or property of the Company, and whether at the
option of the holder thereof or the Company.
(10) Whether such Preferred Stock will rank senior or junior to or on a
parity with any other class or series of Preferred Stock.
(11) The voting rights, if any, of such Preferred Stock.
(12) Any other specific terms, preferences, rights, limitations or
restrictions of such Preferred Stock.
(13) A discussion of federal income tax considerations applicable to such
Preferred Stock.
In addition, as described under "Description of Depositary Shares" and as
will be more fully set forth in the Prospectus Supplement relating to a
particular series of Preferred Shares, the Company, at its option, may
elect to offer Depositary Shares evidenced by depositary receipts, each
representing a fraction of a share of the particular class or series of
Preferred Stock issued and deposited with a depositary, in lieu of
offering full shares of such series of Preferred Shares.
Subject to the Company's Restated Certificate of Incorporation as then in
effect and to any limitations contained in any then outstanding Preferred
Stock, the Company may issue additional classes or series of Preferred
Stock, at any time or from time to time, with such powers, preferences and
relative, participating, optional or other special rights and
qualifications, limitations or restrictions thereof, as the Board of
Directors or any duly authorized committee thereof shall determine, all
without further action of the shareholders, including holders of then
outstanding Preferred Stock, of the Company.
DESCRIPTION OF DEPOSITARY SHARES
General
The Company may, at its option, elect to offer fractional shares of
Preferred Stock, rather than full shares of Preferred Stock. In the event
such option is exercised, the Company will issue receipts for Depositary
Shares, each of which will represent a fraction (to be set forth in the
Prospectus Supplement relating to a particular class or series of
Preferred Stock) of a share of a particular class or series of Preferred
Stock as described below.
The shares of any class or series of Preferred Stock represented by
Depositary Shares will be deposited under a Deposit Agreement (the
"Deposit Agreement") between the Company and a bank or trust company
selected by the Company having its principal office in the United States
and having a combined capital and surplus of at least $50,000,000 (the
"Depositary"). Subject to the terms of the Deposit Agreement, each owner
of a Depositary Share will be entitled, in proportion to the applicable
fraction of a share of Preferred Stock represented by such Depositary
Share, to all the rights and preferences of the Preferred Stock
represented thereby (including dividend, voting and liquidation rights).
18
The Depositary Shares will be evidenced by depositary receipts issued
pursuant to the Deposit Agreement (the "Depositary Receipts"). Depositary
Receipts will be distributed to those persons purchasing the fractional
shares of the related class or series of Preferred Stock in accordance
with the terms of the offering described in the related Prospectus
Supplement. Copies of the forms of Deposit Agreement and Depositary
Receipt are filed as exhibits to the Registration Statement of which this
Prospectus is a part, and the following summary is qualified in its
entirety by reference to such exhibits.
Pending the preparation of definitive engraved Depositary Receipts, the
Depositary may, upon the written order of the Company, issue temporary
Depositary Receipts substantially identical to (and entitling the holders
thereof to all the rights pertaining to) the definitive Depositary
Receipts but not in definitive form. Definitive Depositary Receipts will
be prepared thereafter without unreasonable delay, and temporary
Depositary Receipts will be exchangeable for definitive Depositary
Receipts at the Company's expense.
Dividends and Other Distributions
The Depositary will distribute all cash dividends or other cash
distributions received in respect of the related class or series of
Preferred Stock to the record holders of Depositary Shares relating to
such class or series of Preferred Stock in proportion to the number of
such Depositary Shares owned by such holders.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of Depositary
Shares entitled thereto, unless the Depositary determines that it is not
feasible to make such distribution, in which case the Depositary may, with
the approval of the Company, sell such property and distribute the net
proceeds from such sale to such holders.
Redemption of Depositary Shares
If a series of Preferred Stock represented by Depositary Shares is subject
to redemption, the Depositary Shares will be redeemed from the proceeds
received by the Depositary resulting from the redemption, in whole or in
part, of such series of Preferred Stock held by the Depositary. The
redemption price per Depositary Share will be equal to the applicable
fraction of the redemption price per share payable with respect to such
series of the Preferred Stock. Whenever the Company redeems shares of
Preferred Stock held by the Depositary, the Depositary will redeem as of
the same redemption date the number of Depositary Shares representing
shares of Preferred Stock so redeemed. If fewer than all Depositary
Shares are to be redeemed, the Depositary Shares to be redeemed will be
selected by lot or pro rata as may be determined by the Depositary.
Voting the Preferred Stock
Upon receipt of notice of any meeting at which the holders of the
Preferred Stock are entitled to vote, the Depositary will mail the
information contained in such notice of meeting to the record holders of
the Depositary Shares relating to such Preferred Stock. Each record
holder of such Depositary Shares on the record date (which will be the
same date as the record date for the Preferred Stock) will be entitled to
instruct the Depositary as to the exercise of the voting rights pertaining
to the amount of the class or series of Preferred Stock represented by
such holder's Depositary Shares. The Depositary will endeavor, insofar as
practicable, to vote the amount of the Preferred Stock represented by such
Depositary Shares in accordance with such instructions, and the Company
will agree to take all reasonable action which may be deemed necessary by
the Depositary in order to enable the Depositary to do so. The Depositary
will abstain from voting shares of the Preferred Stock to the extent it
does not receive specific instructions from the holders of Depositary
Shares representing such Preferred Stock.
Amendment and Termination of the Deposit Agreement
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may at any time be amended by agreement
between the Company and the Depositary. However, any amendment which
materially and adversely alters the rights of the holders of Depositary
Shares will not be effective
19
unless such amendment has been approved by the holders of at least a
majority of the Depositary Shares then outstanding.
Unless otherwise specified in the Prospectus Supplement relating to a
particular class or series of Preferred Stock, the Deposit Agreement may
be terminated by the Company or the Depositary only if (i) all outstanding
Depositary Shares have been redeemed or (ii) there has been a final
distribution in respect of the Preferred Stock in connection with any
liquidation, dissolution or winding up of the Company and such
distribution has been distributed to the holders of Depositary Receipts.
Charges of Depositary
The Company will pay all transfer and other taxes and governmental charges
arising solely from the existence of the depositary arrangements. The
Company will pay charges of the Depositary in connection with the initial
deposit of the related class or series of Preferred Stock. Holders of
Depositary Receipts will pay transfer and other taxes and governmental
charges in connection with the transfer, exchange, surrender or split-up
of Depositary Receipts and such other charges as are expressly provided in
the Deposit Agreement to be for their accounts.
Miscellaneous
The Depositary will forward all reports and communications from the
Company which are delivered to the Depositary and which the Company is
required to furnish to the holders of the Preferred Stock.
Neither the Depositary nor the Company will be liable if it is prevented
or delayed by law or any circumstance beyond its control in performing its
obligations under the Deposit Agreement. theThe obligations of the Company
and the Depositary under the Deposit Agreement will be limited to
performance in good faith of their duties thereunder and the Depositary
will not be obligated to prosecute or defend any legal proceeding in
respect of any Depositary Shares or class or series of Preferred Stock
unless satisfactory indemnity is furnished. They may rely on written
advice of counsel or accountants, or information provided by persons
presenting Preferred Stock for deposit, holders of Depositary Shares or
other persons believed to be competent and on documents believed to be
genuine.
Resignation and Removal of Depositary
The Depositary may resign at any time be delivering to the Company notice
of its election to do so, and the Company may at any time remove the
Depositary, any such resignation or removal to take effect upon the
appointment of a successor Depositary, which successor Depositary must be
appointed within 60 days after delivery of the notice of resignation or
removal and must be a bank or trust company having its principal office in
the United States and having a combined capital and surplus of at least
$50,000,000.
PLAN OF DISTRIBUTION
The Company may sell the Securities in and/or outside the United States:
(i) through underwriters or dealers; (ii) directly to a limited number of
purchasers or to a single purchaser; or (iii) through agents. The
Prospectus Supplement with respect to the Securities being offered (the
"Offered Securities") will set forth the terms of the offering of the
Offered Securities, including the name or names of any underwriters or
agents, the purchase price of the Offered Securities and the proceeds to
the Company from such sale, any delayed delivery arrangements, any
underwriting discounts and other items constituting underwriters'
compensation, any initial public offering price and any discounts or
concessions allowed or reallowed or paid to dealers. Any initial public
offering price and any discounts or concessions allowed or reallowed or
paid to dealers may be changed from time to time.
If underwriters are used in the sale, the Offered Securities will be
acquired by the underwriters for their own account and may be resold from
time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices
determined at the time of sale. The Securities may be offered to the
public
20
either through underwriting syndicates represented by one or more managing
underwriters or directly by one or more firms acting as underwriters. The
underwriter or underwriters with respect to a particular underwritten
offering of Securities to be named in the Prospectus Supplement relating
to such offering and, if an underwriting syndicate is used, the managing
underwriter or underwriters, will be set forth on the cover of such
Prospectus Supplement. Unless otherwise set forth in the Prospectus
Supplement relating thereto, the obligations of the underwriters to
purchase the Offered Securities will be subject to conditions precedent
and the underwriters will be obligated to purchase all the Offered
Securities if any are purchased.
If dealers are utilized in the sale of Offered Securities in respect of
which this Prospectus is delivered, the Company will sell such Offered
Securities to the dealers as principals. The dealers may then resell such
Offered Securities to the public at varying prices to be determined by
such dealers at the time of resale. The names of the dealers and the
terms of the transaction will be set forth in the Prospectus Supplement
relating thereto.
The Securities may be sold directly by the Company or through agents
designated by the Company from time to time. Any agent involved in the
offer or sale of the Offered Securities in respect of which this
Prospectus is delivered will be named, and any commissions payable by the
Company to such agent will be set forth, in the Prospectus Supplement.
Agents and underwriters may be entitled under agreements entered into with
the Company to indemnification by the Company against certain civil
liabilities, including liabilities under the Securities Act, or to
contribution with respect to payments which the agents or underwriters may
be required to make in respect thereof. Agents and underwriters may be
customers of, may engage in transactions with, or perform services for,
the Company in the ordinary course of business.
This Prospectus relates to Securities which may be convertible, exchangeable
or redeemable into or for securities of another corporation. In the event
that any such Security is offered, the terms thereof will be set forth in
the related Prospectus Supplement. No offering or sale of a Security which
is convertible, exchangeable or redeemable into or for securities
of another corporation will be made unless a registration statement relating
to such securities of such other corporation has become effective under the
Securities Act or an exemption from such registration is available. If such
a Security is offered, this Prospectus, together with the related Prospectus
Supplement, will include as an attachment a prospectus or will otherwise
include disclosure with respect to the material information relating to
such other corporation and the securities of such other corporation into or
for which such Security is convertible, exchangeable or redeemable.
LEGAL MATTERS
Certain legal matters in connection with the Securities offered hereby
will be passed upon for the Company by Allan L. Miller, Esq., Senior Vice
President, General Counsel and Secretary of the Company.
EXPERTS
The consolidated financial statements and schedules of the Company
incorporated in this Prospectus by reference to the Company's Annual
Report on Form 10-K for the year ended December 31, 1993, have been
audited by Price Waterhouse LLP, independent accountants, as set forth in
their reports thereon included or incorporated by reference therein and
incorporated herein by reference. Such consolidated financial statements
and schedules are, and audited financial statements to be included in
subsequently filed documents will be, incorporated herein in reliance upon
the reports of Price Waterhouse LLP pertaining to such financial
statements (to the extent covered by consents filed with the Securities
and Exchange Commission) given upon the authority of such firm as experts
in accounting and auditing. With respect to the Annual Report on Form 10-
K for the year ended December 31, 1993, the report of Price Waterhouse LLP
contains an explanatory paragraph relating to the restatement and
reclassification of the 1992 consolidated financial statements as
described in note 3 to the financial statements.
21
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14.Other Expenses of Issuance and Distribution.
The following table sets forth the expenses in connection with the
issuance and distribution of the securities being registered, other than
underwriting discounts and commissions. All of the amounts shown are
estimates, except the SEC registration fee.
SEC registration fee $689.655.17$689,655.17
Legal fees and expenses 100,000.00
Printing and engraving 150,000.00
Fees of accountants 30,000.00
Fees of trustees 15,000.00
Blue sky fees and expenses 25,000.00
Miscellaneous 15,344.83
-------------
Total $1,025,000.00
=============
Item 15. Indemnification of Directors and Officers.
Section 14A:3-5 of the New Jersey Business Corporation Act (the "Act")
sets forth the extent to which officers and directors of the registrant
may be indemnified against any liabilities which they may incur in their
capacity as such. Section 14A:3-5 of the Act provides that no
indemnification shall be made if such person shall have been adjudged
liable to a corporation unless the court in which such proceeding was
brought determines upon application that the defendant, officers or
directors are fairly and reasonably entitled to indemnity for such
expenses despite such adjudication of liability. In any case, a
corporation must indemnify an officer or director against expenses
(including attorney's fees) to the extent that he has been successful on
the merits or otherwise or in defense of any claim or issue.
The Registrant's Restated Certificate of Incorporation and the
Registrant's by-laws, as amended, provide for the indemnification of
directors and officers of the Registrant against certain liabilities under
certain circumstances. Directors and officers of the Registrant may be
indemnified under insurance policies of the Registrant.
Section 7 of the form of underwriting agreement filed as Exhibit 1 to this
Registration Statement provides for indemnification of directors, officers
who sign the Registration Statement and controlling persons of the
Registrant by the underwriters, and for indemnification of each
underwriter and its controlling persons by the Registrant, against certain
liabilities. Similar provisions are contained in agreements entered into
between the Registrant and groups of underwriters on past occasions.
Items 16. Exhibits.
Exhibit Description
------- -----------
1.1*1.1 Form of Underwriting Agreement for Debt Securities.
1.2*1.2 Form of Underwriting Agreement for Preferred Stock and Depositary
Shares.
2*2 Composite Conformed Agreement and Plan of Merger dated as of September
23, 1994, as amended, among the Registrant, Borden Acquisition Corp. and
Whitehall Associates, L.P.
3.1*3.1 Form of Restated Certificate of Incorporation of the Registrant.
3.2*3.2 Form of By-Laws of the Registrant.
II-1
4.1*4.1 Form of Indenture between the Registrant and The Chase Manhattan Bank
(National Association), as trustee, relating to the Senior Securities.
4.2*4.2 Form of Indenture between the Registrant and The Bank of New York, as
trustee, relating to the Subordinated Securities.
4.3*4.3 Form of Deposit Agreement.
5*5 Opinion of Allan L. Miller, Esq.
12*12 Computation of Ratios of Earnings to Fixed Charges and Combined Fixed
Charges and Preferred Stock Dividends.
23.1 Consent of Price Waterhouse LLP.
23.2*23.2 Consent of Allan L. Miller, Esq. (included in the opinion filed as
Exhibit 5 hereto).
24*24 Powers of Attorney (included in the signature page of this Registration
Statement).
25.1*25.1 Statement of Eligibility of The Chase Manhattan Bank (National
Association) under the Trust Indenture Act of 1939 on Form T-1 relating to
the Senior Indenture.
25.2*25.2 Statement of Eligibility of The Bank of New York under the Trust
Indenture Act of 1939 on Form T-1 relating to the Subordinated Indenture.
- -------------------------
* Previously filed.
Item 17. Undertakings.
The undersigned Registrant hereby undertakes:
(a) (1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the Registration Statement is on Form S-3, Form S-8 or Form F-3 and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to section 13 or section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by reference in
the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
II-2
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) (1) That, for purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of
prospectus filed as part of this Registration Statement in reliance upon
Rule 430A and contained in a form of prospectus filed by the Registrant
pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act of
1933 shall be deemed to be part of this Registration Statement as of the
time it was declared effective.
(2) That, 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.
(c) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the Registrant's annual report pursuant to
section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in this 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.
(d) 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 referred
to in Item 15 of this Registration Statement, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in
the Securities Act of 1933 and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered,
the Registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-3 and has duly caused this
Pre-Effective Amendment to the Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City
of Columbus, State of Ohio on February 2,March 6, 1995.
BORDEN, INC.
By: /s/ Allan L. Miller
------------------------------------
Allan L. Miller, Senior Vice President,
General Counsel and Secretary
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below on February 2,March 6, 1995 by
the following persons in the capacities indicated.
Each person signing below also hereby appoints Allan L. Miller and Ellen
G. Berndt, and each of them singly, his or her lawful attorney-in-fact
with full power to execute and file any amendments (including any post-
effective amendments) to the Registration Statement, and generally to do
all such things as such attorney-in-fact may deem appropriate to enable
Borden, Inc. to comply with the provisions of the Securities Act of 1933
and all requirements of the Securities and Exchange Commission.
Signature Title
--------- -----
/s/ C. Robert Kidder*
-------------------------------- Chairman of the Board,
C. Robert Kidder Chief Executive Officer and Director
/s/ James C. Van Meter*
-------------------------------- Executive Vice President and
James C. Van Meter Chief Financial Officer
(principal financial officer)
/s/ P. Michael Morton*
-------------------------------- Vice President and General
P. Michael Morton Controller
(principal accounting officer)
/s/ Henry R. Kravis*
-------------------------------- Director
Henry R. Kravis
/s/ George R. Roberts*
-------------------------------- Director
George R. Roberts
/s/ Clifton S. Robbins*
-------------------------------- Director
Clifton S. Robbins
/s/ Scott M. Stuart*
-------------------------------- Director
Scott M. Stuart
II-4
-------------------------------- Director
Alexander Navab
/s/ Frank J. Tasco*
-------------------------------- Director
Frank J. Tasco
/s/ Wilbert J. LeMelle*
-------------------------------- Director
Wilbert J. LeMelle
* By: /s/ Allan L. Miller
------------------------------
Allan L. Miller
Attorney-in-fact
II-5
EXHIBIT INDEX
Exhibit Description Page
------- ----------- ----
1.1*1.1 Form of Underwriting Agreement for Debt Securities.
1.2*1.2 Form of Underwriting Agreement for Preferred Stock
and Depositary Shares.
* 2 Composite Conformed Agreement and Plan of Merger
dated as of September 23, 1994, as amended, among
the Registrant, Borden Acquisition Corp. and
Whitehall Associates, L.P.
3.1*3.1 Form of Restated Certificate of Incorporation of
the Registrant.
3.2*3.2 Form of By-Laws of the Registrant.
4.1*4.1 Form of Indenture between the Registrant and The
Chase Manhattan Bank (National Association), as
trustee, relating to the Senior Securities.
4.2*4.2 Form of Indenture between the Registrant and The
Bank of New York, as trustee, relating to the
Subordinated Securities.
4.3*4.3 Form of Deposit Agreement.
* 5 Opinion of Allan L. Miller, Esq.
12*12 Computation of Ratios of Earnings to Fixed Charges
and Combined Fixed Charges and Preferred Stock
Dividends.
23.1 Consent of Price Waterhouse LLP.
23.2*23.2 Consent of Allan L. Miller, Esq. (included in the
opinion filed as Exhibit 5 hereto).
* 24 Powers of Attorney (included in the signature page
of this Registration Statement).
25.1*25.1 Statement of Eligibility of The Chase Manhattan
Bank (National Association) under the Trust
Indenture Act of 1939 on Form T-1 relating to the
Senior Indenture.
25.2*25.2 Statement of Eligibility of The Bank of New York
under the Trust Indenture Act of 1939 on Form T-1
relating to the Subordinated Indenture.
- -------------------------
* Previously filed.