As Filed with the Securities and Exchange Commission on January 12,June 22, 1998
Registration No. 33-_____
Trust Indenture Act File No. 22-___
(Senior Debt Securities)
Trust Indenture Act File No. 22-___
(Subordinated Debt Securities)333-44101
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------
HASBRO, INC.
(Exact name of registrant as specified in its charter)
RHODE ISLAND 05-0155090
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
1027 NEWPORT AVENUE
PAWTUCKET, RHODE ISLAND 02861
(401) 431-8697
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
PHILLIP H. WALDOKS, ESQ.
SENIOR VICE PRESIDENT -
CORPORATE LEGAL AFFAIRS AND SECRETARY
HASBRO, INC.
32 WEST 23RD STREET
NEW YORK, NEW YORK 10010
(212) 645-2400
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
--------------------
Copies to:
VincentVINCENT J. Pisano, Esq.
Skadden, Arps, Slate,
MeagherPISANO, ESQ.
SKADDEN, ARPS, SLATE,
MEAGHER & FlomFLOM LLP
919 Third Avenue
New York,THIRD AVENUE
NEW YORK, NY 10022
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Approximate date of commencement of proposed sale to the
public: From time to time after the effective date of this registration
statement.
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||X|
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of
the earlier effective registration statement for the same offering. |_||_|
If this Form is a post-effective amendment filed pursuant to
Rule 462 (c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. |_||_|
If delivery of the prospectus is expected to be made pursuant
to Rule 434, please check the following box. |_||_|
--------------------------
CALCULATION OF REGISTRATION FEE
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Title of Each Amount Proposed Maximum Proposed Maximum Amount of
Class of Securities to be Offering Price Aggregate Registration
to be Registered Registered Per Unit(1) Offering Price(1) Fee
- ------------------- ---------- ---------------- --------------------------------- -------------
Debt Securities......$400,000,000(2) 100% $400,000,000 $ 118,000(4)
Common Stock, __ __ __
par value $.50
per share
(including
preference
stock purchase
rights)................(3)
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(1) Estimated solely for the purpose of determining the registration
fee.
(2) If any Debt Securities are issued at an original issue
discount, this registration statement shall cover such greater
amount of Debt Securities as shall result in the initial offering
prices aggregating $400,000,000.
(3) Also registered are such indeterminate number of shares of Common
Stock (including preference stock purchase rights) as may be
issued from time to time upon conversion of Debt Securities
registered hereby.
(4) Pursuant to Rule 429, this Registration Statement also relates to an
aggregate of $150,000,000 principal amount of
debt securities included in Registration Statement No. 33-41548 as
to which a filing fee of $37,500 previously has been paid.
--------------------------
The Registrant hereby amends this Registration Statement on such
date or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that
this Registration Statement shall thereafter become effective in
accordance with Section 8(a) of the Securities Act ofTHE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE
REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT
THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE
WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 or until the
Registration Statement shall become effective on such date as the
Commission, acting pursuant to said Section 8(a)OR UNTIL THE REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), may determine.MAY DETERMINE.
STATEMENT PURSUANT TO RULE 429
Pursuant to Rule 429 under the Securities Act of 1933 the
prospectus included herein also relates to $150,000,000 principal amount of
debt securities previously registered under Registration Statement No.
33-41548 and not issued. In the event any such previously registered debt
securities are offered prior to the effective date of this Registration
Statement, they will not be included in the prospectus contained in this
Registration Statement.
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SUBJECT TO COMPLETION, DATED JANUARY 12,JUNE 22, 1998
[LOGO]
HASBRO, INC.
DEBT SECURITIES
Hasbro, Inc. (the "Company") from time to time may offer its notes,
debentures or other forms of debt securities (the "Debt Securities") in a
principal amount sufficient to result in proceeds to the Company of up to
$550,000,000 (or the equivalent in foreign denominated currencies or
composite currencies, based upon the applicable exchange rate at the time
of sale). The Debt Securities, which may be senior Debt Securities ("Senior
Debt Securities") or subordinated Debt Securities ("Subordinated Debt
Securities"), may be offered as separate series in amounts, at prices and
on other terms to be determined at the time of sale.
The terms of any series of Debt Securities in respect of which this
Prospectus is being delivered, including, where applicable, the specific
designation, aggregate principal amount, denomination, maturity, premium,
if any, interest rate (which may be fixed or variable) and time of payment
of interest, if any, terms for any redemption at the option of the Company
or the Holder, terms, if any for conversion into Common Stock, par value
$.50 per share, of the Company ("Common Stock"), terms for any mandatory
redemption or sinking fund payments, the initial public offering price, any
listing on a securities exchange and the other terms in connection with the
offering and sale of such series of Debt Securities will be set forth in an
accompanying Prospectus Supplement (the "Prospectus Supplement").
-------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
-------------------------
The Company may sell Debt Securities directly or through agents
designated from time to time or to or through one or more underwriters or
dealers. The names of any underwriters, dealers or agents involved in the
sale of any Debt Securities in respect of which this Prospectus is being
delivered, the principal amounts, if any, to be purchased by underwriters
and the applicable commissions or other compensation to be paid to any
underwriters, dealers or agents will be set forth in the Prospectus
Supplement. See "Plan of Distribution."
As used herein, Debt Securities shall include securities denominated
in United States dollars or, at the option of the Company, if so specified
in the applicable Prospectus Supplement, in any other currency or in
composite currencies or in amounts determined by reference to an index.
-------------------------
The date of this Prospectus is , 1998.
NO PERSON IS AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN
THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS
MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF ANY OFFER TO BUY THE DEBT
SECURITIES OFFERED BY THIS PROSPECTUS IN ANY JURISDICTION TO ANY PERSON TO
WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION IN SUCH
JURISDICTION.
-------------------------
CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN
TRANSACTIONS THAT STABILIZE, MAINTAIN, OR OTHERWISE AFFECT THE PRICE OF THE
SECURITIES OFFERED HEREBY. FOR A DESCRIPTION OF THESE ACTIVITIES, SEE "PLAN
OF DISTRIBUTION."
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 and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Company can be inspected and
copied at the public reference facilities maintained by the Commission at
Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549,
as well as the following regional offices: Citicorp Center, 500 West
Madison Street, Chicago, Illinois 60661; 7 World Trade Center, Suite 1300,
New York, New York 10048; and copies of such material can be obtained form
the Public Reference Section of the Commission at prescribed rates. Such
material may also be accessed electronically by means of the Commission's
home page on the Internet at http://www.sec.gov. In addition, certain of
the Company's securities are listed on the American Stock Exchange and
reports, proxy statements and other information concerning the Company may
be inspected at the offices of that stock exchange, 86 Trinity Place, New
York, New York 10006.
----------------------------
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 29, 1996.28, 1997.
(b) The Company's Quarterly ReportsReport on Form 10-Q for the quartersquarter
ended March 30, 1997, June 29, 1997 and September 28, 1997.1998.
(c) The Company's Current Reports on Form 8-K dated February 6,
1997, April 21, 1997, July 17, 1997, October 20, 19971, 1998
and December 9,
1997.April 16, 1998.
All documents filed by the Company pursuant to Sections 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 Debt Securities shall
be deemed to be incorporated by reference in this Prospectus and to be a
part hereof from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by
reference herein or contained in this Prospectus shall be deemed to be
modified or superceded for purposes of this Prospectus to the extent any
statement continued herein or in any subsequently filed document which also
is or is deemed to be incorporated by reference herein modifies or
supercedes such statement. Any such statement so modified or superseded
shall not be deemed to constitute a part hereof except as so modified or
superseded. This Prospectus does not contain all information set forth in
the Registration Statement of which this Prospectus forms a part which the
Company has filed with the Commission and to which reference is hereby
made.
THE COMPANY WILL PROVIDE WITHOUT CHARGE TO EACH PERSON TO WHOM A
COPY OF THIS PROSPECTUS IS DELIVERED, UPON WRITTEN OR ORAL REQUEST OF
SUCH PERSON, A COPY OF ANY OR ALL OF THE DOCUMENTS INCORPORATED HEREIN BY
REFERENCE, OTHER THAN EXHIBITS TO SUCH DOCUMENTS NOT SPECIFICALLY
INCORPORATED BY REFERENCE HEREIN. REQUESTS FOR SUCH COPIES SHOULD BE
DIRECTED TO: HASBRO, INC.The Company will provide without charge to each person to whom a copy
of this Prospectus is delivered, upon written or oral request of such
person, a copy of any or all of the documents incorporated herein by
reference, other than exhibits to such documents not specifically
incorporated by reference herein. Requests for such copies should be
directed to: Hasbro, Inc., 1027 NEWPORT AVENUE, PAWTUCKET, RHODE ISLAND,Newport Avenue, Pawtucket, Rhode Island,
02861, ATTENTION: CYNTHIAAttention: Cynthia S. REED, OR BY TELEPHONE TO CYNTHIAReed, or by telephone to Cynthia S. REED ATReed at
401-431-8697.
THE COMPANY
Hasbro, Inc. is a worldwide leader in the design, manufacture and
marketing of toys, games, interactive software, puzzles and infant
care
products. Both internationally and in the U.S., its Playskool(R),
Kenner(R), Tonka(R), OddzOn(R), Super Soaker(R), Milton Bradley(R), Parker
Brothers(R), Tiger (TM) and Hasbro Interactive(R), OddzOn(R) and Cap Toy(R)Interactive(TM) products provide
children and families with the highest quality and most recognizable toys
and games in the world. They include Mr. Potato Head(R), Tinkertoy(R), G.I. Joe(R),
Tonka(R) Trucks, Easy-Bake(R) Oven, Star Wars(TM), Batman(TM), Koosh(R),
Vortex(TM), The Game of Life(R), Scrabble(R) and Monopoly(R) to name a
few.
The Company was incorporated under the laws of the State of Rhode
Island on January 8, 1926. The Company's principal office is at 1027
Newport Avenue, Pawtucket, Rhode Island 02861, and the Company's telephone
number is (401) 431-8697. For purposes of the preceding paragraph, the
Company means Hasbro, Inc. and its subsidiaries. Elsewhere herein the
Company means Hasbro, Inc. unless the context otherwise requires.
RATIO OF EARNINGS TO FIXED CHARGES
The table below sets forth the ratio of earnings to fixed charges of
the Company and its consolidated subsidiaries for each of the periods
indicated.
FISCAL QUARTERS ENDED IN MARCH(1) FISCAL YEAR(2)
1998 1997 1997 1996 1995 1994 1993
- -------------- ------------- ---------- ---------- --------- --------- ----------
3.05 5.94 5.66 7.51 5.82 7.58 8.59
For purposes of computing the ratios of earnings to fixed charges:
fixed charges include interest, amortization of debt expense and one-third
of rentals; and earnings available for fixed charges represent earnings
before fixed charges and income taxes.
USE OF PROCEEDS
The net proceeds to be received by the Company from the sale of the
Debt Securities will be used for working capital, to repurchase outstanding
shares of the Company's Common Stock and for acquisitions. Any specific
allocation of the net proceeds of an offering of Debt Securities to a
specific purpose will be described in the applicable Prospectus Supplement.
RATIO OF EARNINGS TO FIXED CHARGES
The table below sets forth the ratio of earnings to fixed charges of
the Company and its consolidated subsidiaries for each of the periods
indicated.
NINE MONTHS ENDED FISCAL YEAR(1)
SEPTEMBER 28, 1997 1996 1995 1994 1993 1992
- ------------------------ -------- -------- ---------- --------- --------
6.70 7.51 5.82 7.58 8.59 7.08
For purposes of computing the ratios of earnings to fixed charges:
fixed charges include interest, amortization of debt expense and
one-third of rentals; and earnings available for fixed charges represent
earnings before fixed charges and income taxes.
- --------
1 Fiscal Quarters ended on March 29, 1998 and March 30, 1997.
2 Fiscal years 1997, 1996, 1995, 1994, 1993 and 1992 ended on December 28,
1997, December 29, 1996, December 31, 1995, December 25, 1994,
December 26, 1993 and December 31, 1992, respectively.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will be general unsecured obligations of the
Company. The Debt Securities will be issued either as Senior Debt
Securities or as Subordinated Debt Securities. Both Senior Debt Securities
and Subordinated Debt Securities may be issued as convertible Debt
Securities ("Convertible Debt Securities") which, unless previously
redeemed or otherwise purchased, will be convertible into shares of the
Company's common stock, par value $.50 per share (the "Common Stock").
The Senior Debt Securities are to be issued under an Indenture dated
as of January , 1998indenture (the
"Senior Indenture") between the Company and a banking institution, as
trustee. The Subordinated Debt Securities are to be issued under an
Indenture dated as of January , 1998indenture (the "Subordinated Indenture") between the Company and a banking
institution, as trustee. In this Prospectus, the Senior Indenture and the
Subordinated Indenture are sometimes collectively referred to as the
"Indentures" and individually as an "Indenture," and the trustees
thereunder are sometimes collectively referred to as the "Trustees" and
individually as a "Trustee." The forms of the indentures are filed at
exhibits to the Registration Statement of which this Prospectus is a part.
The following description of the terms of the Indentures and the Debt
Securities sets forth certain general terms and provisions of the
Indentures and the Debt Securities to which any Prospectus Supplement may
relate. The terms of any particular series of Debt Securities offered by
any Prospectus Supplement (the "Offered Debt Securities") and the extent,
if any, to which such general provisions may apply to the Offered Debt
Securities will be described in the Prospectus Supplement relating to such
Offered Debt Securities. The following summaries of certain provisions of
the Indentures do not purport to be complete and are subject to, and are
qualified in their entirety by reference to, all provisions of the
Indentures, including the definitions therein of certain terms. Wherever
particular sections or defined terms of the Indentures are referred to,
such sections or defined terms shall be incorporated herein by reference.
The Indentures are substantially identical, except for certain covenants of
the Company applicable to the Senior Indenture and provisions relating to
subordination. See "Provisions Applicable Solely to Senior Debt Securities"
and "Provisions Applicable Solely to Subordinated Debt Securities." Certain
terms defined in the Indentures are capitalized herein, and particular
section numbers refer to sections in the Indentures.
The Debt Securities will be obligations exclusively of the Company.
Because significant operations of the Company are currently conducted
through subsidiaries, the cash flows of the Company are dependent in part
upon the cash flows of such subsidiaries and the availability of those cash
flows to the Company. In addition, the payment of dividends, distributions
and certain loans and advances to the Company by its subsidiaries may be
subject to certain statutory or contractual restrictions, are contingent
upon the earnings of such subsidiaries and are subject to various business
considerations.
Any right of the Company to receive assets of any of its subsidiaries
upon their liquidation, reorganization or recapitalization (and the
consequent right of the Holders of the Debt Securities to participate in
those assets) will be effectively subordinated to the claims of the
creditors and any preferred shareholders of the respective subsidiaries
(which creditors would include trade creditors and in the future may
include lenders of additional debt for borrowed money), except to the
extent that the Company is itself recognized as a creditor of any such
subsidiary, in which case the claims of the Company would still be
subordinated to any security interests in the assets of such subsidiary and
any indebtedness of such subsidiary senior to that held by the Company.
Unless otherwise indicated in a Prospectus Supplement relating to any
Offered Debt Securities, the covenants contained in the Indentures or the
Offered Debt Securities would not afford Holders of the Offered Debt
Securities protection in the event of a highly leveraged or other
transaction involving the Company or its subsidiaries that may adversely
affect the Holders.
GENERAL
The Debt Securities may be issued from time to time in separate series
in amounts, at prices and on other terms to be determined at the time of
sale. The Indentures will not limit the amount of Debt Securities which may
be issued thereunder.
Reference is made to the Prospectus Supplement which will describe the
following terms of the offered Debt Securities: (a) the title of the
Offered Debt Securities; (b) classification of the Offered Debt Securities
as Senior Debt Securities or Subordinated Debt Securities and any limit on
the aggregate principal amount of the Offered Debt Securities; (c) whether
the Offered Debt Securities are Convertible Debt Securities and, if so, the
terms and conditions upon which conversion will be effected, including the
initial conversion price or conversion rate, the conversion period and
other conversion provisions in addition to or in lieu of those described
herein; (d) the date or dates on which the Offered Debt Securities will
mature and/or the method by which such date or dates will be determined;
(e) the rate or rates (which may be fixed or variable) per annum at which
the Offered Debt Securities will bear interest, if any, and the date from
which such interest will accrue and/or the method by which such rate or
rates will be determined; (f) the dates on which such interest, if any,
will be payable and the Regular Record Dates for such Interest Payment
Dates; (g) any mandatory or optional sinking fund or purchase fund or
analogous provisions; (h) if applicable, the period or periods within
which, or the date on which and the price or prices at which, the Offered
Debt Securities may, pursuant to any optional or mandatory redemption
provisions, be redeemed at the option of the Company or the Holder thereof
and the other detailed terms and provisions of such optional or mandatory
redemption; (i) the place or places of payment of principal of (and
premium, if any) and interest, if any, on the Offered Debt Securities and
the place or places where the Offered Debt Securities may be presented for
transfer and, if applicable, conversion; (j) whether the Offered Debt
Securities are issuable as Registered Securities, Bearer Securities or
both, and the terms upon which Bearer Securities may be exchanged for
Registered Securities; (k) special provisions relating to the issuance of
any Bearer Securities of any series; (l) the currency in Dollars, Foreign
Currency or any composite currency of any series in which the Offered Debt
Securities will be denominated or in which principal (premium, if any) and
interest, if any, in respect thereof may be payable; (m) any deletions
from, changes in or additions to Events of Default or covenants of the
Company in the applicable Indenture; (n) the form of Debt Securities and
Coupons, if any; and (o) any other terms of the Offered Debt Securities.
(Section 3013.01 of the Indentures)
The Debt Securities will be issuable as Registered Securities, as
Bearer Securities or both. Debt Securities of a series may be issuable in
global form, as described below under "Global Securities." Unless the
Prospectus Supplement relating thereto specifies otherwise, Registered
Securities denominated in U.S. dollars will be issued only in denominations
of $1,000 or any integral multiple thereof, and Bearer Securities
denominated in U.S. dollars will be issued only in denominations of $5,000
or any integral multiple thereof. (Section 3023.02 of the Indentures)
Debt Securities may be presented for exchange, and Registered
Securities (other than a Book-Entry Security) may be presented for
registration of transfer (with the form of transfer endorsed thereon duly
executed), at the office of any transfer agent or at the office of the
Security Registrar, without service charge and upon payments of any taxes
and other governmental charges as described in the Indentures. Such
registration of transfer or exchange will be effected upon the transfer
agent or the Security Registrar, as the case may be, being satisfied with
the documents of title and identity of the person making the request.
(Section 3053.05 of the Indentures) Bearer Securities will be transferable by
delivery.
Debt Securities may be issued under the Indentures as Original Issue
Discount Securities to be offered and sold at a substantial discount from
the principal amount thereof. If the Offered Debt Securities are Original
Issue Discount Securities, the special Federal income tax, accounting and
other considerations applicable thereto will be described in the Prospectus
Supplement relating thereto. "Original Issue Discount Security" means any
security which provides for an amount less than the principal amount
thereof to be due and payable upon the declaration of acceleration of the
maturity thereof upon the occurrence of an Event of Default and the
continuation thereof. (Section 1011.01 of the Indentures)
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in an applicable Prospectus Supplement,
payment of principal of (and premium, if any) and interest, if any, on
Registered Securities will be made in the designated currency at the office
of such Paying Agent or Paying Agents as the Company may designate from
time to time, except that at the option of the Company payment of any
interest may be made (i) by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register or
(ii) by wire transfer to an account maintained by the Person entitled
thereto as specified in the Security Register. Unless otherwise indicated
in an applicable Prospectus Supplement, payment of any installment of
interest on Registered Securities will be made to the Person in whose name
such Registered Security is registered at the close of business on the
Regular Record Date for such interest payment. (Sections 3073.07 and 100210.02 of
the Indentures)
Payment of principal of, premium, if any, and interest, if any, on
Bearer Securities will be payable in the currency or composite thereof and
in the manner designated in the Prospectus Supplement, subject to any
applicable laws and regulations, at such paying agencies outside the United
States as the Company may appoint from time to time. The Paying Agents
outside the United States initially appointed by the Company for a series
of Debt Securities will be named in the Prospectus Supplement. The Company
may at any time designate additional Paying Agents or rescind the
designation of any Paying Agents, except that, if Debt Securities of a
series are issuable as Registered Securities, the Company will be required
to maintain at least one Paying Agent in each Place of Payment for such
series and, if Debt Securities of a series are issuable as Bearer
Securities, the Company will be required to maintain a Paying Agent in a
Place of Payment outside the United States where Debt Securities of such
series and any Coupons appertaining thereto may be presented and
surrendered for payment; provided that if the Debt Securities of such
series are listed on The International Stock Exchange of the United Kingdom
and the Republic of Ireland Limited or 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 in
London or Luxembourg or any other required city located outside the United
States, as the case may be, for the Debt Securities of such series.
(Section 100210.02 of the Indentures)
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in
global form. A Debt Security in global form will be deposited with, or on
behalf of, a Depositary, which will be identified in an applicable
Prospectus Supplement. A Debt Security may be issued in either registered
or bearer form and in either temporary or permanent form. A Debt Security
in global form may not be transferred except as a whole by the Depositary
for such Debt Security to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or
by such Depositary or any such nominee to a successor of such Depositary or
a nominee of such successor. If any Debt Security of a series is issuable
in global form, the applicable Prospectus Supplement will describe the
circumstances, if any, under which beneficial owners of interests in any
such global Debt Security may exchange such interests for definitive Debt
Securities of such series of like tenor and principal amount in any
authorized form and denomination, the manner of payment of principal and
interest, if any, on any such global Debt Security and the specific terms
of the depositary arrangement with respect to any such global Debt
Security. (Section 3053.05 of the Indentures)
WAIVER, MODIFICATIONS AND AMENDMENT
The Holders of a majority in principal amount of the Outstanding Debt
Securities of any particular series may waive past defaults with respect to
such series. (Section 6126.12 of the Indentures) The Holders of a majority in
aggregate principal amount of the Outstanding Senior Debt Securities
(voting as a class and not by individual series) under the Senior Indenture
or, in case less than all of the several series of Outstanding Senior Debt
Securities are affected, the Holders of a majority in aggregate principal
amount of the Outstanding Senior Debt Securities of each series affected
(voting as a single class), may waive the Company's compliance with certain
restrictive provisions of the Senior Indenture. (Section 100710.07 of the
Senior Indenture) In order to determine the aggregate principal amount of
any Outstanding Debt Securities not payable in U.S. dollars, the principal
amount of the Debt Securities shall be deemed to be that amount of Dollars
that could be obtained for such principal amount based on the spot rate of
exchange for such Foreign Currency or such currency unit as determined by
the Company or by an authorized exchange rate agent. (Section 1011.01 of the
Indentures)
Modification and amendment of an Indenture may be made by the Company
and the applicable Trustee (i) with the consent of the Holders of a
majority in aggregate principal amount of the Outstanding Debt Securities
thereunder (voting as a class and not by individual series), or (ii) in
case less than all of the several series of Debt Securities then
Outstanding thereunder are affected by the modification or amendment, with
the consent of the Holders of a majority in principal amount of the
Outstanding Debt Securities of all series so affected (voting as a single
class and not by individual series), provided that no such modification or
amendment may, without the consent of the Holder of each Debt Security
affected thereby: (a) change the Stated Maturity of the principal of, or
any installment of principal of or interest, if any, on, any Debt Security;
(b) reduce the principal amount of, or the rate of interest, if any, on, or
any premium payable upon the redemption of, any Debt Security, or reduce
the amount of the principal of an Original Issue Discount Security that
would be due and payable upon a declaration of acceleration of the Maturity
thereof; (c) change the currency of payment, or delete any country from
Places of Payment, of principal or premium, if any, or interest, if any, on
any Debt Security (other than any such country in which, in the good faith
determination of the Board of Directors of the Company, the functions to be
performed in the Places of Payment in such country are no longer
practicably performable); (d) impair the right to institute suit for the
enforcement of any payment on or with respect to any Debt Security; (e) if
applicable, make any change that adversely affects the right to convert any
Debt Security or (except as provided in the applicable Indenture) decrease
the conversion rate or increase the conversion price of any Debt Security;
(f) modify, in the case of the Subordinated Indenture, the provisions
relating to the subordination of the Subordinated Debt Securities in a
manner adverse to the Holders of the Subordinated Debt Securities; (g)
reduce the percentages of Holders of Debt Securities of any particular
series necessary to amend or supplement such Indenture or waive defaults or
compliance as specified in this or the preceding paragraph; or (h) modify
the foregoing requirements. Any modification or amendment which changes or
eliminates any covenant or other provision of an Indenture which has
expressly been included solely for the benefit of one or more particular
series of Debt Securities, or which modifies the rights of the Holders of
Debt Securities 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 of any other series. (Section
9029.02 of the Indentures)
EVENTS OF DEFAULT
The following events are Events of Default under the Indentures with
respect to any particular series of Debt Securities issued thereunder: (a)
default in payment of any principal of (or premium, if any, on) any Debt
Security of that series, or default in the deposit of any sinking fund
payment on any Debt Security of that series, when due; (b) default in the
payment of any interest, if any, on any Debt Security of that series when
due, continued for 30 days; (c) default in the performance, or breach, of
any other covenant of the Company (other than a covenant included in the
applicable Indenture solely for the benefit of series of Debt Securities
other than the series in respect of which the Event of Default is being
determined), continued for 90 days after written notice as provided in the
Indentures; (d) certain events of bankruptcy, insolvency or reorganization
under federal or state laws of the United States, involving the Company or
a Significant Subsidiary; (e) acceleration of Indebtedness of the Company
or any Significant Subsidiary aggregating more than $20$50 million so that
such Indebtedness becomes due prior to the date which the same would
otherwise become due and payable, unless such acceleration is rescinded,
annulled or otherwise cured; (f) final and nonappealable judgments or
orders to pay, in the aggregate at any one time, more than $20$50 million
rendered by a court of competent jurisdiction against the Company or a
Significant Subsidiary, continued for 90 days (during which execution shall
not be effectively stayed or bonded) without discharge or reduction to $20$50
million or less; and (g) any other Events of Default provided with respect
to Debt Securities of that series. (Section 6016.01 of the Indentures) As used
in this paragraph, the term "Significant Subsidiary" has the meaning
ascribed to such term in Regulation S-X of the Commission as in effect on
January __,June 1, 1998 (i.e., a subsidiary, together with its subsidiaries, that
satisfies any of the following conditions, subject to certain exceptions:
(i) the Company and its other subsidiaries' investments in and advances to
the subsidiary exceed 20%10% of the total consolidated assets of the Company
and its subsidiaries (such total consolidated assets being computed as of
the end of the most recently completed fiscal year), (ii) the Company and
its other subsidiaries' proportionate share of the total assets of the
subsidiary exceeds 20%10% of the total consolidated assets of the Company and
its subsidiaries (such total consolidated assets being computed as of the
end of the most recently completed fiscal year) or (iii) the Company and
its other subsidiaries' equity in the income from continuing operations
before income taxes, extraordinary items and cumulative effect of a change
in accounting principle of the subsidiary exceeds 20%10% of such consolidated
income of the Company and its subsidiaries (such total consolidated income
being computed as of the end of the most recently completed fiscal year).
If, with respect to Debt Securities of any series at the time
Outstanding, an Event of Default shall occur and be continuing, then and in
every such case (unless the principal of all the Debt Securities of that
series shall have already become due and payable) the applicable Trustee or
the Holders of at least 25% in principal amount of the Outstanding Debt
Securities of that series may declare to be due and payable immediately by
a notice in writing to the Company (and to the applicable Trustee if given
by Holders) the entire principal amount, or, in the case of Original Issue
Discount Securities, such portion of the principal amount as may be
provided for in such Debt Securities, of all the Debt Securities of that
series; provided that no such notice or declaration shall be required in
the case of an Event of Default with respect to the Company referred to in
clause (d) of the preceding paragraph. At any time after such declaration
of acceleration has been made, but before a judgment or decree for payment
of the money due has been obtained by the applicable Trustee, the Holders
of a majority in principal amount of the Outstanding Debt Securities of
that series, by written notice to the Company and the applicable Trustee,
may, subject to certain conditions, rescind and annual such declaration and
its consequences, if all payments due (other than those due as a result of
acceleration) have been made and all other Events of Default have been
cured or waived. (Section 6026.02 of the Indentures)
No Holder of any Debt Securities of any particular series shall have
any right to institute any proceeding with respect to the Indentures or for
any remedy thereunder, unless such Holder previously shall have given to
the applicable Trustee written notice of a default with respect to that
series and unless the Holders of at least 25% of the principal amount of
Outstanding Debt Securities of that series also shall have made written
request upon the applicable Trustee, and have offered reasonable indemnity,
to institute such proceeding as trustee, and the applicable Trustee shall
not have received directions inconsistent with such request in writing by
the Holders of a majority in principal amount of Outstanding Debt
Securities of that series and shall have failed to institute such
proceeding within 60 days. However, the right of any Holder of any Debt
Security to enforce the payment of principal and interest due on such Debt
Security on or after the dates expressed in such Debt Security, may not be
impaired or affected. (Section 6076.07 of the Indentures)
The Company will be required to furnish to each Trustee annually a
statement as to the fulfillment by the Company of all of its obligations
under the related Indenture.
The Trustee will, with certain exceptions, give the Holders notice of
all Events of Default known to the Trustee, within 90 days after the
occurrence thereof.
DEFEASANCE AND COVENANT DEFEASANCE
The Indentures provide, if such provision is made applicable to the
Debt Securities of any series pursuant to Section 3013.01 of the applicable
Indenture, that the Company may elect under certain conditions either (A)
to defease and be discharged from any and all obligations with respect to
such Debt Securities (except as otherwise provided in the applicable
Indenture) ("defeasance") or (B) with respect to any such series of Senior
Debt Securities, to be released from its obligations with respect to such
Senior Debt Securities described below under "Restrictions on Liens," and
"Restrictions on Sale and Leaseback Transactions," ("covenant defeasance")
upon the irrevocable deposit with the applicable Trustee, in trust for such
purpose, of money, and/or U.S. Government Obligations and/or, if so
specified with respect to such series, Foreign Government Securities (each
as defined) which through the payment of principal and interest in
accordance with their terms will provide money in an amount sufficient to
pay the principal of (and premium, if any) and interest, if any, on such
Debt Securities, and any mandatory sinking fund or analogous payments
thereon, on the scheduled due dates therefor. Such a trust may only be
established if, among other things, the Company has delivered to the
applicable Trustee an Opinion of Counsel to the effect that (i) the Holders
of such Debt Securities will not recognize income, gain or loss, for
Federal income tax purposes as a result of such defeasance or covenant
defeasance and will be subject to Federal income tax on the same amounts,
in the same manner and at the same times as would have ben the case if such
defeasance or covenant defeasance had not occurred (such opinion, in the
case of defeasance under clause (A) above, must refer to and be based upon
a ruling of the Internal Revenue Service) and (ii) if the deposit referred
to above shall include U.S. Government Obligations or Foreign Government
Securities, such deposit shall not result in the Company, the Trustee or
such trust being regulated as an "investment company," under the Investment
Company Act of 1940. (Article Five of the Indentures) The Prospectus
Supplement may further describe the provisions, if any, permitting such
defeasance or covenant defeasance with respect to Debt Securities of a
particular series.
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Under each Indenture, a consolidation or merger of the Company with or
into another corporation, or the sale, conveyance or lease of all or
substantially all of the Company's property to another corporation is
permitted provided that (i) the Person (if other than the Company) is a
corporation organized under the laws of the United States or any state
thereof; (ii) the corporation (if other than the Company) assumes payment
of the principal of (and premium, if any) and interest, if any, on the
Outstanding Debt Securities and Coupons and the performance and observance
of all the covenants and conditions of such Indenture; (iii) the
corporation (if other than the Company) delivers to the applicable Trustee
a supplemental indenture providing for preservation of conversion rights,
if any; and (iv) the Company shall have delivered to the applicable Trustee
an Officers' Certificate and an Opinion of Counsel, each stating that the
consolidation, merger, sale, conveyance or lease and such supplemental
indenture comply with Article Eight of the applicable Indenture and that
all conditions precedent therein provided for relating to such transaction
have been complied with. In addition, in the case of Senior Debt
Securities, if, upon or as a result of any such consolidation, merger,
sale, conveyance or lease, or upon any acquisition by the Company by
purchase or otherwise of all or any part of the properties of any other
Person, any Principal Property or any shares of capital stock or
indebtedness of any Restricted Subsidiary owned by the Company or any Restricted Subsidiary
immediately prior thereto would thereupon become subject to any mortgage,
security interest, pledge or lien or encumbrance not permitted by the
covenant described under "Provisions Applicable Solely to Senior Debt
Securities -- Restrictions on Liens," the Company immediately prior to such
consolidation, merger, sale, conveyance, lease or acquisition shall, by
supplemental indenture, secure the due and punctual payment of the
principal of, and premium, if any, and interest, if any, on the Senior Debt
Securities then outstanding (equally and ratably with any other
indebtedness entitled thereto immediately following such transaction).
(Section 8018.01 of the Indentures and Section 8038.03 of the Senior Indenture)
CONVERSION
The Indentures may provide for a right of conversion (or mandatory
conversion at the option of the Company) of Debt Securities into Common
Stock (or cash in lieu thereof). The following provisions will apply to
Debt Securities that are Convertible Debt Securities unless otherwise
provided in the Prospectus Supplement for such Debt Securities.
The Holder of Convertible Debt Securities which are convertible at the
option of the holder will have the right exercisable at the time or times
described in the Prospectus Supplement, unless such Convertible Debt
Securities are previously redeemed or otherwise purchased by the Company,
to convert such Convertible Debt Securities into shares of Common Stock at
the conversion price set forth in the Prospectus Supplement, subject to
adjustment. The Holder of such Convertible Debt Securities may convert any
portion thereof which is $1,000 in principal amount or any integral
multiple thereof, except as otherwise specified in the Prospectus
Supplement. The Holder of any Convertible Debt Securities which are
mandatorily convertible into shares of Common Stock at the option of the
Company will receive, upon the exercise of such option by the Company, in
exchange for such Convertible Debt Securities, shares of Common Stock upon
the terms, and subject to the conditions, set forth in the applicable
Prospectus Supplement. (Section 4024.02 of the Indentures)
In certain events, the conversion price will be subject to adjustment
as set forth in the Indentures. Such events include the issuance of shares
of Common Stock of the Company as a dividend or distribution on the Common
Stock; subdivisions, combinations and reclassifications of the Common
Stock; the issuance generally to holders of Common Stock of rights, options
or warrants entitling the holders thereof (for a period not exceeding 45
days) to subscribe for or purchase shares of Common Stock at a price per
share less than the then current market price per share of Common Stock (as
defined in the Indentures); and the distribution generally to holders of
Common Stock of evidences of indebtedness, equity securities (including
equity interests in the Company's subsidiaries) other than Common Stock, or
other assets (excluding cash dividends paid from earned surplus or current
net earnings but including Extraordinary Cash Dividends) or subscription
rights or options or warrants entitling holders to subscribe for securities
(other than those referred to above). In cases where the fair market value
of the portion of assets, debt securities or rights, warrants or options to
purchase securities of the Company applicable to one share of Common Stock
distributed to shareholders exceeds the current market price per share of
Common Stock, or such current market price exceeds such fair market value
of such portion of assets, debt securities or right, warrants or options so
distributed by less than $1.00, rather than being entitled to an adjustment
in the Conversion Rate, the Holder of a Convertible Debt Security upon
conversion thereof will be entitled to receive, in addition to the shares
of Common Stock into which such Convertible Debt Security is convertible,
the kind and amounts of assets, debt securities or rights, options or
warrants comprising the distribution that such Holder would have received
if such Holder had converted such Convertible Debt Security immediately
prior to the record date for determining the shareholders entitled to
receive the distribution. No adjustment of the conversion price will be
required unless an adjustment would require a cumulative increase or
decrease of at least 1% in such price; provided, however, that any
adjustments not made because of such provision will be carried forward and
taken into account in any subsequent adjustment. (Section 4044.04 of the
Indentures)
With respect to the Rights distributed under the Company's Rights Plan
described below under "Certain AntiTakeover Provisions," and/or in the
event that the Company distributes any other rights or warrants (other than
those referred to in the preceding paragraph) ("Additional Rights") pro
rata to holders of Common Stock, so long as any such Rights or Additional
Rights have not expired or been redeemed, the Holder of any Convertible
Debt Security surrendered for conversion will be entitled to receive upon
such conversion, in addition to the shares of Common Stock issuable upon
such conversion (the "Conversion Shares"), a number of Rights or Additional
Rights to be determined as follows: (i) if such conversion occurs on or
prior to the date for the distribution to the holders of Rights or
Additional Rights of separate certificates evidencing such Rights or
Additional Rights (the "Distribution Date"), the same number of Rights or
Additional Rights to which a holder of a number of shares of Common Stock
equal to the number of Conversion Shares is entitled at the time of such
conversion in accordance with the terms and provisions applicable to the
Rights or Additional Rights and (ii) if such conversion occurs after such
Distribution Date, the same number of Rights or Additional Rights to which
a holder of the number of shares of Common Stock into which such
Convertible Security was convertible immediately prior to such Distribution
Date would have been entitled to receive on such Distribution Date in
accordance with the terms and provisions of and applicable to the Rights or
Additional Rights. The conversion price of the Convertible Debt Securities
will not be subject to adjustment on account of any declaration,
distribution or exercise of such Rights or Additional Rights. (Section 4044.04
of the Indentures)
Fractional shares of Common Stock will not be issued upon conversion,
but, in lieu thereof, the Company will pay a cash adjustment based on the
then current market price for the Common Stock. (Section 4034.03 of the
Indentures) Upon conversion, no payments or adjustments will be made for
accrued interest on Convertible Debt Securities or dividends. A Convertible
Debt Security surrendered for conversion between the record date for an
interest payment and the interest payment date (except a Convertible Debt
Security called for redemptionto be redeemed on a redemption date during such period) must be
accompanied by payment of an amount equal to the interest which the
registered Holder is to receive thereon (or the portion thereof to be
converted) and interest payable on such interest payment date shall,
notwithstanding such conversion, be payable on such interest payment date
to the Holder on such record date. (Sections 3073.07 and 4024.02 of the
Indenture)
In the case of any consolidation or merger of the Company with or into
any other person (with certain exceptions) or any sale or transfer of all
or substantially all the assets of the Company, the Holder of Convertible
Debt Securities, after the consolidation, merger, sale or transfer, will
have the right to convert such Convertible Debt Securities only into the
kind and amount of securities, cash and other property which the Holder
would have been entitled to receive upon such consolidation, merger, sale
or transfer, if the Holder had held the Common Stock issuable upon
conversion of such Convertible Debt Securities immediately prior to such
consolidation, merger, sale or transfer. (Section 4054.05 of the Indentures)
PROVISIONS APPLICABLE SOLELY TO SENIOR DEBT SECURITIES
General. Senior Debt Securities will be issued under the Senior
Indenture and will rank pari passu with all other unsecured and
unsubordinated debt of the Company.
Certain Definitions. For purposes of the following discussion, the
following definitions are applicable. (Article One of the Senior Indenture)
"Attributable Debt" in respect of a Sale and Leaseback Transaction
means, as of any particular time, the present value (discounted at the rate
of interest implicit in the terms of the lease involved in such Sale and
Leaseback Transaction, as determined in good faith by the Company) of the
obligation of the lessee thereunder for rental payments during the
remaining term of such lease.
"Consolidated Net Tangible Assets" means, as determined at any time,
the aggregate amount of assets included on a consolidated balance sheet of
the Company and its Subsidiaries (less applicable reserves), after
deducting therefrom (a) all current liabilities of the Company and its
Subsidiaries (which includes current maturities of long-term indebtedness)
and (b) the total of the net book values of all assets of the Company and
its Subsidiaries properly classified as intangible assets under generally
accepted accounting principles, in each case as of the end of the last
fiscal quarter for which financial information is available at the time of
such calculation.
"Funded Debt" means all indebtedness which by its terms matures more
than 12 months after the time of the computation of the amount thereof or
which is extendible or renewable at the option of the obligor on such
indebtedness to a time more than 12 months after the time of the
computation of the amount thereof or which is classified, in accordance
with generally accepted accounting principles in effect on JanuaryJune 1, 1998, on
a corporation's balance sheet as long-term debt.
"Principal Property" means any real property, manufacturing plant,
warehouse, office building or other physical facility or other like
depreciable physical assets of the Company or of any Subsidiary, whether
owned at or acquired after the date of the Senior Indenture, having a net
book value at the time of the determination in excess of the greater of 5%
of Consolidated Net Tangible Assets or $25$50 million other than, in each
case, any of the same which in the good faith opinion of the Board of
Directors of the Company is not of material importance to the total
business conducted by the Company and its Subsidiaries as a whole. As of
the date of this Prospectus none of the Company's assets constitute
Principal Property as defined above.
"Sale and Leaseback Transaction" means any arrangement with any Person
providing for the leasing or use by the Company or any Subsidiary of any
Principal Property, whether owned at the date of the Indenture or
thereafter acquired (except for temporary leases of a term, including any
renewal period, of not more than three years), which Principal Property has
been or is to be sold or transferred by the Company or a Subsidiary to a
Person with an intention of taking back a lease of such property.
"Secured Debt" means indebtedness (other than indebtedness among the
Company and its Subsidiaries) for money borrowed by the Company or a
Subsidiary which is secured by (a) a mortgage or other lien on any
Principal Property or (b) a pledge, lien or other security interest on any
shares of stock or evidences of indebtedness of a Subsidiary. If any amount
of such indebtedness described in the parenthetical in the preceding
sentence and held by the Company or a Subsidiary is transferred in any
manner to any Person other than the Company or a Subsidiary, such amount
shall be deemed to be Secured Debt issued on the date of transfer.
"Subsidiary" means any corporation of which the Company, or the
Company and one or more Subsidiaries, or any one or more Subsidiaries,
directly or indirectly own a majority (by number of votes) of the
outstanding voting securities having voting power under ordinary
circumstances to elect the directors of such corporation.
Restrictions on Liens.Secured Debt. The Company and its Subsidiaries are
prohibited from creating, incurring, assuming or guaranteeing any Secured
Debt without, so long as any such indebtedness shall be so secured,
securing the Senior Debt Securities of such series and any other
indebtedness of or guaranteed by the Company or any such Subsidiary then
entitled thereto equally and ratably with or, at the option of the Company,
prior to such Secured Debt. The foregoing restrictions are not applicable
to (i) any mortgage, security interest, pledge, lien or encumbrance on any
property hereafter acquired, improved or constructed by the Company or a
Subsidiary and created within 180 days after such acquisition (or, in the
case of property constructed or improved, within 180 days after the
completion and commencement of commercial operation of such property) to
secure or provide for the payment of all or any part of the purchase or
construction price of such property, (ii) any mortgage, security interest,
pledge, lien or encumbrance existing on property at the time of acquisition
by the Company or a Subsidiary, (iii) any mortgage, security interest,
pledge, lien or encumbrance existing on the property or on the outstanding
shares of indebtedness of a corporation at the time it becomes a Subsidiary
(but not created in anticipation of the transaction in which such
corporation becomes a Subsidiary), (iv) any mortgage, security interest,
pledge, lien or encumbrance on the property, shares or indebtedness of a
corporation existing at the time such corporation is merged or consolidated
with the Company or a Subsidiary or at the time of a sale, lease or other
disposition of the properties of a corporation or firm as an entirety or
substantially as an entirety to the Company or a Restricted Subsidiary (but not
created in anticipation of any such transaction), (v) any mortgage,
security interest ,pledge, lien or encumbrance in favor of governmental
bodies to secure certain payments of indebtedness or (vi) extensions,
renewals or replacements of the foregoing. (Section 100910.09 of the Senior
Indenture).
Notwithstanding the foregoing restrictions, the Company and any one or
more Subsidiaries may create, incur, assume or guarantee Secured Debt
(including, for purposes of this paragraph, pursuant to a transaction to
which the covenant described in the second sentence under "Consolidation,
Merger, Sale or Conveyance" applies) not otherwise permitted or excepted
without equally and ratably securing the Senior Debt to the extent that the
sum of (a) the amount of all Secured Debt then outstanding (other than
Secured Debt referred to in the immediately preceding paragraph and Secured
Debt deemed outstanding under the second sentence of "Consolidation,
Merger, Sale or Conveyance" in connection with which the Company secures
obligations on the Senior Debt Securities then outstanding in accordance
with the provisions of such second sentence after giving effect thereto)
plus (b) the amount of Attributable Debt in respect of Sale and Leaseback
Transactions (other than Sale and Leaseback Transactions in respect of
which amounts equal to the Attributable Debt relating to the transactions
shall have been applied, within 180 days after the effective date of such
Sale and Leaseback Transaction, to the prepayment or retirement of Senior
Debt Securities or certain other indebtedness for money borrowed which was
recorded as Funded Debt of the Company or a Subsidiary and Sale and
Leaseback Transactions in which the property involved would have been
permitted to be subjected to a mortgage, security interest, pledge, lien or
encumbrance as described in the last sentence of the preceding paragraph),
does not at the time exceed the greater of 10% of Consolidated Net Tangible
Assets or $100 million. (Section 100910.09 of the Senior Indenture)
Restrictions on Sale and Leaseback Transactions. Sale and Leaseback
Transactions by the Company or any Subsidiary of any Principal Property are
prohibited unless at the effective time of such Sale and Leaseback
Transaction (a) the Company or such Subsidiary would be entitled, without
equally and ratably securing the Senior Debt Securities, to incur Secured
Debt secured by a mortgage or security interest on the Principal Property
to be leased pursuant to "Restrictions on Secured Debt" above, or (b) the
Company or such Restricted Subsidiary would be entitled, without equally and ratably
securing the Senior Debt Securities, to incur Secured Debt in an amount at
least equal to the Attributable Debt in respect of such Sale and Leaseback
Transaction, or (c) the Company shall apply an amount equal to such
Attributable Debt, within 180 days after the effective date of such Sale
and Leaseback Transaction, to the prepayment or retirement of Senior Debt
Securities or certain other indebtedness for borrowed money which was
recorded as Funded Debt of the Company and its Subsidiaries, including the
prepayment or retirement of any mortgage, lien or other security interest
in such Principal Property existing prior to such Sale and Leaseback
Transaction. The aggregate principal amount of such Senior Debt Securities
or such other indebtedness required to be so retired will be reduced by the
aggregate principal amount of (a) any Senior Debt Securities delivered
within 180 days after the effective date of any such Sale and Leaseback
Transaction to the Trustee for retirement and (b) such other indebtedness
retired by the Company or a Subsidiary within 180 days after the effective
date of such Sale and Leaseback Transactions. (Section 101110.11 of the Senior
Indenture)
PROVISIONS APPLICABLE SOLELY TO SUBORDINATED DEBT SECURITIES
Subordination. The indebtedness evidenced by the Subordinated Debt
Securities will be subordinate in right of payment to the extent set forth
in the Subordinated Indenture to all existing and future Senior
Indebtedness (as defined below) of the Company. Upon any distribution of
assets of the Company in any dissolution, winding down, liquidation or
reorganization of the Company (whether in an insolvency or bankruptcy
proceeding or otherwise), payment in full must be made on such Senior
Indebtedness before any payment is made on or in respect of the
Subordinated Debt Securities. Upon the happening and during the continuance
of a default in payment of principal of or sinking fund installments, if
any, due with respect to, or interest on, any Senior Indebtedness, no
payment of principal, interest or premium, if any, may be made by the
Company upon or in respect of the Subordinated Debt Securities unless and
until such default shall have been remedied, nor shall any such payment be
made if after giving effect, as if paid, to such payment any such default
would exist. No such subordination will prevent the occurrence of any Event
of Default. (Sections 130213.02 and 130313.03 of the Subordinated Indenture)
"Senior Indebtedness" means the principal of and premium, if any, and
interest (whether accruing before or after filing of any petition in
bankruptcy or any similar proceeding by or against the Company) on any
Indebtedness of the Company, whether outstanding on the date of issuance of
the applicable series of Subordinated Debt Securities or thereafter
incurred, assumed or guaranteed; excluding, however, (i) the Subordinated
Debt Securities, (ii) any Indebtedness of the Company which, by its terms
or the terms of the instrument creating or evidencing it, is subordinate in
right of payment to or pari passu with the Subordinated Debt Securities.
"Indebtedness" means (1) any liability of any Person (a) for borrowed
money, (b) evidenced by a note, debenture or similar instrument (including
an obligation with or without recourse) issued in connection with the
acquisition (whether by way of purchase, merger, consolidation or
otherwise) of any business, real property or other assets (other than
inventory or similar property acquired in the ordinary course of business)
or (c) for the payment of money relating to a Capital Lease Obligation (as
defined in the Subordinated Indenture); (2) any liability of others
described in the preceding clause (1) which the Person has guaranteed or
which is otherwise its legal liability or (3) any amendment, renewal,
extension or refunding of any such liability.
The Indentures do not limit the amount of additional Indebtedness,
including Senior Indebtedness or Indebtedness ranking pari passu with the
Subordinated Debt Securities, which the Company or any Subsidiary can
create, incur, assume or guarantee. As a result of these subordination
provisions and the requirement that certain payments be paid over to
Holders of Senior Indebtedness, in the event of insolvency, Holders of the
Subordinated Debt Securities may recover less ratably than general
creditors of the Company. (Section 130213.02 of the Subordinated Indenture)
DESCRIPTION OF CAPITAL STOCK
The following statements with respect to the capital stock of the
Company are subject to the detailed provisions of the Company's articles of
incorporation, as amended (the "Articles of Incorporation"), and by-laws,
as amended (the "By-Laws"). These statements do not purport to be complete,
or to give full effect to the provisions of statutory or common law, and
are subject to, and are qualified in their entirety by reference to, the
terms of the Articles of Incorporation and the By-Laws. The Articles of
Incorporation and the By-Laws are hereby incorporated herein by reference.
GENERAL
The authorized capital stock of the Company consists of 300,000,000
shares of Common Stock, par value $.50 per share, and 5,000,000 shares of
Preference Stock, par value $2.50 per share (the "Preference Stock"). The
Company's Articles of Incorporation authorize the Company's Board of
Directors (the "Board of Directors") to provide for the issuance, from time
to time, of series of Preference Stock, to establish the number of shares
to be included in any such series and to fix the designations, powers,
preferences and rights of the shares of each such series and any
qualifications, limitations or restrictions thereof. No shares of
Preference Stock are outstanding as of the date hereof. However, 100,000
shares of Series B Junior Participating Preference Stock, par value $2.50
per share, of the Company (the "Junior Preference Stock") have been
authorized and reserved for issuance in connection with the preference
stock purchase rights (the "Rights") described in "Description of Rights
and Junior Preference Stock."
VOTING RIGHTS
Each holder of Common Stock is entitled to one vote for each share
registered in histhe holder's name on the books of the Company on all matters
submitted to a vote of shareholders. Except as otherwise provided by law,
the holders of Common Stock vote as one class. The shares of Common Stock
do not have cumulative voting rights. As a result, subject to the voting
rights, if any, of the holders of any shares of Preference Stock which may
at the time be outstanding, the holders of Common Stock entitled to
exercise more than 50% of the voting rights in an election of directors can
elect 100% of the directors to be elected in a particular year if they
choose to do so. In such event, the holders of the remaining Common Stock
voting for the election of directors will not be able to elect any persons
to the Board of Directors.
DIVIDEND RIGHTS
Subject to the rights of the holders of outstanding Preference Stock,
if any, the holders of Common Stock are entitled to such dividends as the
Board of Directors may declare out of funds legally available therefor.
LIQUIDATION RIGHTS AND OTHER PROVISIONS
Subject to the prior rights of creditors and the holders of
outstanding Preference Stock, if any, the holders of the Common Stock are
entitled in the event of liquidation, dissolution or winding up to share
pro rata in the distribution of all remaining assets.
The Common Stock is fully paid and is not liable to any calls or
assessments and is not convertible into any other securities. There are no
redemption or sinking fund provisions applicable to the Common Stock, and,
in accordance with the Rhode Island Business Corporation Act and the
Articles of Incorporation, there are no preemptive rights.
BankBoston, N.A. acts as transfer agent and registrar for the
Common Stock.
DIRECTORS' LIABILITY
The Articles of Incorporation provide that, to the fullest extent
permitted by the Rhode Island Business Corporation Act, a director of the
Company shall not be personally liable to the Company or its shareholders
for monetary damages for any breach of the director's fiduciary duty as a
director, except for liability (i) for any breach of the director's duty of
loyalty to the Company or its shareholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) in respect of certain unlawful dividend payments or
stock purchases or (iv) for any transaction from which the director derived
an improper personal benefit (other than such transactions permitted under
Section 7-1.1-37 of the Rhode Island Business Corporation Act). In
addition, the By-Laws include certain provisions whereby directors and
officers of the Company generally shall be indemnified against certain
liabilities to the fullest extent permitted or required by the Rhode Island
Business Corporation Act.
CERTAIN ANTI-TAKEOVER PROVISIONS
The provisions of the Articles of Incorporation summarized in the
succeeding paragraphs could have an anti-takeover effect. These provisions
are intended to enhance the likelihood of continuity and stability in the
composition of the Board of Directors and in the policies formulated by the
Board of Directors. They may, however, delay, defer or prevent a tender
offer or takeover attempt that a shareholder might consider in such
shareholder's best interest, including those attempts that might result in
a premium over the market price for the shares held by shareholders.
The Board of Directors is divided into three classes that are elected
for staggered three-year terms. Directors can be removed from office only
for cause and, with certain exceptions, only with the approval of a
majority vote of the entire Board of Directors or by the affirmative vote
of holders of a majority of the then outstanding shares of capital stock of
the Company entitled to vote for such directors. Vacancies on the Board of
Directors may be filled only by the remaining directors and not by the
shareholders.
Pursuant to the Articles of Incorporation, the Board of Directors by
resolution may establish one or more series of Preference Stock having such
number of shares, designation, relative voting rights, dividend rates,
liquidation and other rights, preferences and limitations as may be fixed
by the Board of Directors without any further shareholder approval. Such
rights, preferences, privileges and limitations as may be established could
have the effect of impeding or discouraging the acquisition of control of
the Company.
The Articles of Incorporation also provide that any action required or
permitted to be taken by the shareholders of the Company may be effected
only at an annual or special meeting of shareholders, or by the unanimous
written consent of shareholders.
The Articles of Incorporation require (i) an 80% vote of all
outstanding Company shares entitled to vote, including a majority vote of
all disinterested shareholders, (ii) the approval of a majority of the
entire Board of Directors, including the affirmative vote of a majority of
the "Continuing Directors" (as defined in the Articles of Incorporation),
and (iii) the satisfaction of certain procedural requirements which are
intended to assure that shareholders are treated fairly under the
circumstances, in order to approve certain extraordinary corporate
transactions (such as a merger, consolidation or sale of all or
substantially all assets) with an Interested Person. The 80% vote will not
be required and, in accordance with the Rhode Island Business Corporation
Act, only a majority vote of shareholders will generally be required if
such a transaction is approved by a majority of the entire Board of
Directors, including the affirmative vote of at least two-thirds of the
Continuing Directors.
The Rights attach to all certificates representing outstanding shares
of Common Stock and will attach to any shares of Common Stock which are
issued by the Company upon conversion of any Convertible Debt Securities.
The Rights will separate from the Common Stock and a Distribution Date will
occur upon the earlier of (i) 10 days following a public announcement that
a person or group of affiliated or associated persons (other than as
described below) has acquired beneficial ownership of 20% or more of the
outstanding shares of Common Stock (an "Acquiring Person") or (ii) 10
business days (or such later date as may be determined by action of the
Board of Directors prior to such time as any Person (other than the
Company, any subsidiary of the Company or any employee benefit plan of the
Company or any subsidiary) becomes an Acquiring Person) following the
commencement of, or announcement of an intention to make, a tender offer or
exchange offer, the consummation of which would result in a Person becoming
an Acquiring Person. The term "Acquiring Person" does not include the
Company, any subsidiary of the Company, any employee benefit plan of the
Company or of any subsidiary or the Hassenfeld Group (which includes the
Chairman and Chief Executive Officer of the Company, a director of the
Company and certain other members of the Hassenfeld Family and certain
related entities).
The Rights are not exercisable until the Distribution Date, if any,
and will expire on June 30, 1999 (the "Final Expiration Date"), unless the
Final Expiration Date is extended or unless the Rights are earlier
exchanged or redeemed by the Company, in each case, as described below.
In the event that the Company is acquired in a merger or other
business combination transaction or 50% or more of the consolidated assets
or earning power is sold, proper provision will be made so that each holder
of a Right will thereafter have the right to receive, upon the exercise
thereof at the then current exercise price of the Right, that number of
shares of common stock of the acquiring company which at the time of such
transaction will have a market value of two times the exercise price of the
Right. In the event that any person becomes an Acquiring Person, each
holder of a Right will thereafter have the right to receive upon exercise
that number of shares of Common Stock having a market value of two times
the exercise price of the Right. From and after the occurrence of such
event, any Rights that are or were acquired or beneficially owned by any
Acquiring Person (or any Associate or Affiliate) shall be void and any
holder of such Rights shall thereafter have no right to exercise such
Rights.
At any time after a person becomes an Acquiring Person and prior to
the acquisition by a person or group of 50% or more of the outstanding
shares of Common Stock, the Board of Directors may exchange the Rights
(other than Rights owned by such person or group which have become void),
in whole or in part, at an exchange ratio of one share of Common Stock per
Right (subject to adjustment).
At any time prior to the time at which there is an Acquiring Person,
the Board of Directors may redeem the Rights in whole, but not in part, at
a price of $.00444 per Right. The redemption of the Rights may be made
effective at such time on such basis and with such conditions as the Board
of Directors in its sole discretion may establish. Immediately upon any
redemption of the Rights, the right to exercise the Rights will terminate,
and the only right of the holders of Rights will be to receive the
Redemption Price.
The Board of Directors has the ability, after the Rights become
exercisable for Common Stock, to substitute a Common Stock equivalent
Preference Stock in the event the Company is not able to authorize
sufficient shares of Common Stock. In addition, there is an exception to
the provisions governing the triggering of the Rights that would exempt a
person or group that the Board of Directors determines in good faith would
otherwise have triggered the Rights inadvertently, so long as the person or
group, as promptly as practicable, divests sufficient stock to bring its
ownership below the triggering threshold.
The terms of the Rights may be amended by the Company without the
consent of the holders of the Rights, including an amendment to lower the
threshold for exercisability of the Rights from 20% to not less than 10%;
provided, however, that if any Person becomes an Acquiring Person, the
Rights may not be amended in any manner that would adversely affect the
interests of the holders of the Rights. In addition, if any Person then
beneficially owns in excess of 10% of the shares of Common Stock of the
Company, any such amendment shall provide that any such Person shall not
become an Acquiring Person and no Distribution Date shall occur as a result
of any such Person's beneficial ownership of Common Stock shares, unless,
in any such case, any such Person shall thereafter become the beneficial
owner of either (i) an additional 1% of the shares of the Common Stock of
the Company then outstanding or (ii) 20% or more of the shares of Common
Stock of the Company then outstanding (provided that if a Person becomes
the Beneficial Owner of 20% or more of the shares of Common Stock of the
Company then outstanding by reason of share purchases by the Company, this
condition shall be deemed not to be satisfied as long as such Person does
not thereafter become the Beneficial Owner of any additional shares of
Common Stock).
Until a Right is exercised, the holder thereof, as such, will have no
rights as a shareholder of the Company, including, without limitation, the
right to vote or to receive dividends.
JUNIOR PREFERENCE STOCK
In connection with the Rights Agreement, 100,000 shares of Junior
Preference Stock have been reserved and authorized for issuance by the
Board of Directors. No shares of Junior Preference Stock are outstanding as
of the date of this Prospectus. The following statements with respect to
the Junior Preference Stock do not purport to be complete and are subject
to, and are qualified in their entirety by reference to, the detailed
provisions of the Articles of Incorporation and the Certificate of
Designation relating to the Junior Preference Stock (the "Certificate of
Designation"), which is incorporated herein by reference. Capitalized terms
used herein and not otherwise defined shall have the meanings given to them
in the Certificate of Designation.
Shares of Junior Preference Stock purchasable upon exercise of the
Rights will not be redeemable. Each share of Junior Preference Stock will
be entitled to a minimum preferential quarterly dividend payment of $10 per
share but will be entitled to an aggregate dividend of 1,000 times the
dividend declared per share of Common Stock. In the event of liquidation,
the holders of the Junior Preference Stock will be entitled to a minimum
preferential liquidation payment of $1,000 per share but will be entitled
to an aggregate payment of 1,000 times the payment made per share of Common
Stock. Each share of Junior Preference Stock will have 1,000 votes, voting
together with the Common Stock. In the event of any merger, consolidation
or other transaction in which shares of Common Stock are exchanged, each
share of Junior Preference Stock will be entitled to receive 1,000 times
the amount received per share of Common Stock. These rights are subject to
proportionate adjustment in the event of certain stock splits,
recombinations and other events.
PLAN OF DISTRIBUTION
General. The Company may sell Debt Securities directly or to or
through one or more underwriters, agents or dealers who will be named in
the Prospectus Supplement or an underwriting syndicate, represented by one
or more managing underwriters, that would be named in the Prospectus
Supplement relating to an issue of Offered Debt Securities.
The distribution of the Debt Securities may be effected from time to
time in one or more transactions at a fixed price or prices, which may be
changed, or at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices.
In connection with underwritten offerings of the Debt Securities and
in accordance with applicable law and industry practice, underwriters may
over-allot or effect transactions which stabilize, maintain or otherwise
affect the market price of the Debt Securities at levels above those which
might otherwise prevail in the open market, including by entering
stabilizing bids, effecting syndicate covering transactions or imposing
penalty bids. A stabilizing bid means the placing of any bid, or the
effecting of any purchase, for the purpose of pegging, fixing or
maintaining the price of a security. A syndicate covering transaction means
the placing of any bid on behalf of the underwriting syndicate or the
effecting of any purchase to reduce a short position created in connection
with the offering. A penalty bid means an arrangement that permits the
managing underwriter to reclaim a selling concession from a syndicate
member in connection with the offering when Debt Securities originally sold
by such syndicate member are purchased in syndicate covering transactions.
Such transactions may be effected in the over-the-counter market or
otherwise. Underwriters are not required to engage in any of these
activities. Any such activities, if commenced, may be discontinued at any
time.
In connection with the sale of Debt Securities to underwriters,
underwriters may receive compensation in the form of discounts, concessions
or commissions from the Company or from purchasers of Debt Securities for
whom they may act as agents. Underwriters and dealers that participate in
the distribution of Debt Securities may be deemed to be underwriters, and
any discounts or commissions received by them and any profit on the resale
of Debt Securities by them may be deemed to be underwriting discounts and
commissions under the Securities Act of 1933, as amended (the "Act"). Any
such underwriter will be identified, and any such compensation will be
described, in the Prospectus Supplement.
Debt 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 Debt Securities in respect of which this Prospectus is
delivered will be named, and any commissions payable by the Company to such
agent will be set forth, in the Prospectus Supplement. Unless otherwise
indicated in the Prospectus Supplement, any such agent will be acting on a
best efforts basis for the period of its appointment.
Under agreements which may be entered into by the Company,
underwriters, agents and dealers who participate in the distribution of
Debt Securities may be entitled to indemnification by the Company against
certain liabilities, including liabilities under the Act, or to
contribution with respect to payments which such underwriters, dealers, or
agents may be required to make in respect thereof. Such underwriters,
dealers or agents may engage in transactions with, or perform services for,
the Company in the ordinary course of business.
The Debt Securities are a new issue of securities with no established
trading market. In the event that Debt Securities of a series offered
hereunder are not listed on a national securities exchange, certain
broker-dealers may make a market in the Debt Securities, but will not be
obligated to do so and may discontinue any market making at any time
without notice. No assurance can be given that any broker-dealer will make
a market in the Debt Securities of any series or as to the liquidity of the
trading market for the Debt Securities. Any such market making may be
discontinuediscontinued at any time.
LEGAL MATTERS
The validity of the Offered Debt Securities will be passed upon for
the Company by Phillip H. Waldoks, Senior Vice President - Corporate Legal
Affairs and Secretary of the Company. Mr. Waldoks has options to purchase
108,512 shares of Common Stock granted under the Company's employee stock
option plans. Certain legal matters with respect to the Offered Debt
Securities will be passed upon for any underwriters, dealers or agents by
Skadden, Arps, Slate, Meagher & Flom LLP, New York, New York. Mr. Waldoks
and Skadden, Arps, Slate, Meagher & Flom LLP will rely, as to matters of
Rhode Island law, on the opinion of Cynthia S. Reed, Senior Vice President
and General Counsel of the Company. Ms. Reed owns 710 shares of Common
Stock and has options to purchase 49,937 shares of Common Stock granted
under the Company's employee stock option plans.
EXPERTS
The consolidated financial statements incorporated by reference and
schedule included in the Annual Report on Form 10-K of the Company for the
fiscal year ended December 29, 199628, 1997 incorporated by reference herein and
elsewhere in the Registration Statement, have been incorporated by
reference herein and in the Registration Statement in reliance upon the
reports of KPMG Peat Marwick LLP, independent certified public accountants,
incorporated by reference herein, and upon the authority of said firm as
experts in accounting and auditing.
LEGAL MATTERS
The validity of the Offered Debt Securities will be passed upon for
the Company by Phillip H. Waldoks, Senior Vice President - Corporate
Legal Affairs and Secretary of the Company. Mr. Waldoks has options to
purchase 98,512 shares of Common Stock granted under the Company's
employee stock option plans. Certain legal matters with respect to the
Offered Debt Securities will be passed upon for any underwriters, dealers
or agents by Skadden, Arps, Slate, Meagher & Flom LLP, New York, New
York.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The estimated expenses in connection with the issuance and
distribution of the securities being registered, other than underwriting
discounts and commissions, will be paid by the Registrant and are:
Filing Fee for Registration Statement.................. Statement........................$118,000
Rating Agency Fees......................................Fees.......................................... 200,000
Legal Fees and Expenses.................................Expenses..................................... 25,000
Accounting Fees and Expense.............................
Blue Sky Fees and Expenses..............................Expense................................. 50,000
Printing and Engraving Fees.............................Fees................................. 35,000
Trustees' Fees..........................................
Miscellaneous...........................................
Total............................................. Fees.............................................. 12,000
Miscellaneous............................................... 12,000
Total..................................................$ ---------450,000
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant is incorporated in Rhode Island. Under Section
7-1.1-4.17-1.1- 4.1 of the Rhode Island Business Corporation Act, a Rhode Island
corporation has the power, under specified circumstances, to indemnify its
officers, directors, employees and agents against judgments, penalties,
fines, settlements and reasonable expenses, including attorneys' fees,
actually incurred by them in connection with any proceeding to which such
persons were made parties by reason of the fact that such persons are or
were directors, officers, employees or agents, if (a) such persons shall
have acted in good faith, (b) they reasonably believed that their actions
were in the best interests of the corporation (if such proceeding involves
conduct in an official capacity with the corporation) or not opposed to the
best interests of the corporation (if such proceeding involves conduct
other than in an official capacity with the corporation), and (c) in
criminal proceedings, they had no reasonable cause to believe that their
conduct was unlawful. The foregoing statement is subject to the detailed
provisions of 7-1.1-4.1 of the Rhode Island Business Corporation Act.
Article X of the By-Laws of the Registrant provides that the
Registrant shall indemnify its directors and officers to the full extent
permitted by Section 7-1.1-4.1 of the Rhode Island Business Corporation
Act.
Section 7-1.1-48 of the Rhode Island Business Corporation Act provides
that articles of incorporation may contain a provision eliminating or
limiting the personal liability of a director to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a
director provided that such provision shall not eliminate or limit the
liability of a director (i) for any breach of the director's duty of
loyalty to the corporation or its shareholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 7-1.1-43 (relating to liability for
unauthorized acquisitions or redemptions of, or dividends or distribution
on, capital stock) of the Rhode Island Business Corporation Act, or (iv)
for any transaction from which the director derived an improper personal
benefit (unless said transaction is permitted by Section 7-1.1-37.1
(relating to director conflicts of interest) of the Rhode Island Business
Corporation Act). Article Thirteenth of the Registrant's Articles of
Incorporation contains such a provision.
Section 7-1.1-4.1(j) of the Rhode Island Business Corporation
Act empowers a Rhode Island corporation to purchase and maintain insurance
on behalf of its current and prior directors, officers, employees and
agents against any liability incurred or asserted against them as a result
of their official capacities, whether or not the corporation would have the
power to indemnify such person against the insured liability under the
provisions of such Section. The Registrant has a directors and officers
liability insurance policy.
The Registrant has entered into an indemnification agreement
with each of its directors, whereby the Registrant has agreed to indemnify
each such director for amounts which the director is legally obligated to
pay, including judgments, settlements of fines (including certain related
expenses to be advanced by the Registrant), due to any actual or alleged
breach of duty, neglect, error, misstatement, misleading statement or other
act or omission by a director in his capacity as a director, excluding
claims (a) covered by the Registrant's directors and officers liability
insurance policy, (b) for which the director is otherwise indemnified or
reimbursed, (c) relating to certain judgments or adjudications under which
the director is liable for breaches of duty of loyalty, acts or omissions
not in good faith or involving intentional misconduct or involving knowing
violations of law, actions or certain transactions from which the director
derives an improper personal benefit, (d) relating to the director's
liability for accounting for profits under Section 16 of the Securities
Exchange Act of 1934, as amended, (e) in respect of remuneration, if found
unlawful, and (f) as to which a final and non-appealable judgement has
determined that payment to the director thereunder is unlawful.
In addition, the Underwriting Agreement will provide for
indemnification of directors and officers of the Registrant under certain
circumstances.
ITEM 16. LIST OF EXHIBITS
The following Exhibits are filed as part of this Registration
Statement:
1.1+1.1 Form of Underwriting Agreement.
3.1 Restated Articles of Incorporation of the Company
(incorporated by reference to Exhibit (c)(2) to the
Company's Current Report on Form 8-K, dated July
15, 1993, File No. 1-6682.)
3.2 Amended and Restated Bylaws of the Company
(incorporated by reference to Exhibit (3) to the
Company's Current Report on Form 8-K, dated February
16, 1996, File No. 1-6682.)
4.1+4.1 Form of the Indenture dated as of January __, 1998, between Registrant and a banking
institution, as trustee, relating to Senior
Debt Securities.*
4.2+**
4.2 Form of the Indenture dated as of January ___, 1998 between Registrant and a
banking institution, as trustee, relating to
Subordinated Debt Securities.***
4.3 Rights Agreement dated June 4, 1989 between the
Company and BankBoston, N.A. (formerly named The First
National Bank of Boston) (incorporated by reference to
Exhibit 1 to the Company's Form 8-A dated June 12,
1989, as amended by the Company's Form 8 dated
September 7, 1990.)
5.+5.1+ Opinion of Phillip H. Waldoks, Senior Vice
President - Corporate Legal Affairs and Secretary of the
Company.
12.+12.1+ Calculation of Ratio of Earnings to Fixed Charges.
24.123.1 Consent of KPMG Peat Marwick LLP.
24.224.2+ Consent of Phillip H. Waldoks, Senior Vice President
-
Corporate Legal Affairs and Secretary of the Company
(included as part of Exhibit 5)5.1).
- -------------
+ To be filed by Amendment.
--------------
*** The form or forms of Debt Securities with respect to each particular
offering of securities registered hereunder will be filed as an
exhibit to a report on Form 8-K and incorporated herein by
reference.
+ To be filed by Amendment.
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
1. To file, during any period in which offers or sales are
being made of the securities registered hereby, a post-effective amendment
to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3)
of the Act:
(ii) to reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
Registration Statement; and
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this Registration
Statement;
provided, however, that the undertakings set forth in paragraphs (i) and
(ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the Registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act") that
are incorporated by reference in this Registration Statement.
2. That, for the purpose of determining any liability under the
Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
3. To remove from registration by means of a post-effective
amendment any of the securities being registered hereby which remain unsold
at the termination of the offering.
4. That, for purposes of determining any liability under the
Act, each filing of the Registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Exchange Act) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
5. To file an application for the purpose of determining the
eligibility of the trustee to act under subsection (a) of Section 310 of
the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") in
accordance with the rules and regulations prescribed by the Securities and
Exchange Commission under Section 305(b)(2) of the Trust Indenture Act.
Insofar as indemnification for liabilities arising under the
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Act and is therefore unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted against the Registrant by such
director, officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the
final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused
this Amendment to the Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Pawtucket, State
of Rhode Island, on the 12th22nd day of January,June, 1998.
HASBRO, INC.
By /s/ ALAN G. HASSENFELD
---------------------------By: *
----------------------------------
Alan G. Hassenfeld
Chairman of the Board
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
this Amendment to the Registration Statement has been signed by the
following persons in the capacities and on the dates indicated.
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each person whose
signature appears below constitutes and appoints each of Harold P.
Gordon, John T. O'Neill, Brenda T. Simensky and Phillip H. Waldoks as
such person's true and lawful attorney-in-fact and agent, with full power
of substitution and revocation, for such person and in such person's
name, place and stead, in any and all capacities to sign any and all
amendments (including post-effective amendments) to this Registration
Statement and to file the same with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange
Commission, granting unto each of said attorneys-in-fact and agents full
power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes
as such person might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent or his substitute or
substitutes, may lawfully do or cause to be done by virtue thereof.
Signature Title Date
- --------- ----- ----
/s/ ALAN G. HASSENFELD*
______________________________ Chairman of the Board, January 12,June 22, 1998
- ---------------------------- President, Chief
ALAN G. HASSENFELD President, Chief Executive
Officer and Director
(Principal Executive
Officer)
/s/*
_____________________________ Executive Vice President June 22, 1998
JOHN T. O'NEILL Executive Vice January 12, 1998
- ---------------------------- President and Chief
JOHN T. O'NEILL Financial Officer
(Principal Financial and
Accounting Officer)
/s/*
_____________________________ Director June 22, 1998
ALAN R. BATKIN
*
_____________________________ Director January 12,June 22, 1998
- ----------------------------
ALAN R. BATKIN
/s/
HAROLD P. GORDON
*
_____________________________ Director January 12,June 22, 1998
- ----------------------------
HAROLD P. GORDON
/s/
ALEX GRASS
_____________________________ Director January 12, 1998
- ----------------------------
ALEX GRASS
Director January __, 1998
- ----------------------------
SYLVIA K. HASSENFELD
/s/*
_____________________________ Director June 22, 1998
MARIE-JOSEE KRAVIS
*
_____________________________ Director January 12,June 22, 1998
- ----------------------------
MARIE-JOSEE KRAVIS
/s/
CLAUDINE B. MALONE
*
_____________________________ Director January 12,June 22, 1998
- ----------------------------
CLAUDINE B. MALONE
/s/
MORRIS W. OFFIT
*
_____________________________ Director January 12,June 22, 1998
- ----------------------------
MORRIS W. OFFIT
/s/
NORMA T. PACE
*
_____________________________ Director January 12,June 22, 1998
- ----------------------------
NORMA T. PACE
/s/
E. JOHN ROSENWALD, JR.
*
_____________________________ Director June 22, 1998
CARL SPIELVOGEL
*
_____________________________ Director June 22, 1998
PRESTON ROBERT TISCH
*
_____________________________ Director June 22, 1998
ALFRED J. VERRECCHIA
_____________________________ Director
PAUL WOLFOWITZ
* Phillip H. Waldoks, pursuant to Powers of Attorney (executed by each
of the officers and directors indicated above and filed as part of
the registrant's Registration Statement, filed on January 12, 1998,
- ----------------------------
E. JOHN ROSENWALD, JR.Reg. No. 333-44101), by signing his name hereto does hereby sign and
execute this Amendment No. 1 to Form S-3 Registration Statement Under
the Securities Act of 1933 on behalf of each such officer and
director.
/s/ CARL SPIELVOGEL Director January 12, 1998
- ----------------------------
CARL SPIELVOGEL
/s/ HENRY TAUB Director January 12, 1998
- ----------------------------
HENRY TAUB
/s/ PRESTON R. TISCH Director January 12, 1998
- ----------------------------
PRESTON ROBERT TISCH
/s/ ALFRED J. VERRECCHIA Director January 12, 1998
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ALFRED J. VERRECCHIA
Director January __, 1998
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PAUL WOLFOWITZ
===============================================================Phillip H. Waldoks
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Phillip H. Waldoks
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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HASBRO, INC.
(Exact name of registrant as specified in its charter)
Rhode Island 05-0155090
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
organization)
E X H I B I T S
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EXHIBIT INDEX
Exhibit No. Description
Page No.
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1.1+1.1 Form of Underwriting Agreement.
3.1 Restated Articles of Incorporation of
the Company (incorporated by reference
to Exhibit (c)(2) to the Company's
Current Report on Form 8-K, dated July
15, 1993, File No. 1-6682.)
3.2 Amended and Restated Bylaws of the
Company (incorporated by reference to
Exhibit (3) to the Company's Current
Report on Form 8-K, dated February 16,
1996, File No. 1-6682.)
4.1+4.1 Form of the Indenture dated as
of January __, 1998, between
Registrant and a banking institution,
as trustee, relating to Senior Debt
Securities.*
4.2+4.2 Form of the Indenture dated as
of January ___, 1998 between
Registrant and a banking institution,
as trustee, relating to Subordinated
Debt Securities.*
4.3 Rights Agreement dated June 4, 1989
between the Company and BankBoston,
N.A. (formerly named The First
National Bank of Boston) (incorporated
by reference to Exhibit 1 to the
Company's Form 8-A dated June 12,
1989, as amended by the Company's Form
8 dated September 7, 1990.)
5.+5.1+ Opinion of Phillip H. Waldoks, Senior
Vice President - Corporate Legal
Affairs and Secretary of the Company.
12.+12.1+ Calculation of Ratio of Earnings to
Fixed Charges.
24.123.1 Consent of KPMG Peat Marwick LLP.
24.224.2+ Consent of Phillip H. Waldoks, Senior
Vice President - Corporate Legal
Affairs and Secretary of the Company
(included as part of Exhibit 5)5.1).
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+ To be filed by Amendment
* The form or forms of Debt Securities with respect to each particular
offering of securities registered hereunder will be filed as an exhibit
to a report on Form 8-K and incorporated herein by reference.