AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 14, 1995
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
-----------------
AMENDMENT
NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
-------------------
SYSCO CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 74-1648137
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION)
1390 ENCLAVE PARKWAY
HOUSTON, TEXAS 77077-2099
(713) 584-1390
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
THOMAS P. KURZ
GENERAL COUNSEL
SYSCO CORPORATION
1390 ENCLAVE PARKWAY
HOUSTON, TEXAS 77077-2099
(713) 584-1390
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------
COPIES TO:
JAMES E. DORSEY CARLOS A. FIERRO
ARNALL GOLDEN & GREGORY BAKER & BOTTS, L.L.P.
2800 ONE ATLANTIC CENTER 2001 ROSS AVENUE
1201 WEST PEACHTREE STREET DALLAS, TEXAS 75201-2980
ATLANTA, GEORGIA 30309-3450 (214) 953-6818
(404) 873-8608
-------------------
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]
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. [X]
-------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
SUBJECT TO COMPLETION, DATED JUNE 14, 1995
PROSPECTUS
$500,000,000
SYSCO CORPORATION
DEBT SECURITIES
------------
Sysco Corporation ("SYSCO" or the "Company") may offer and issue from time
to time in one or more series debt securities (the "Debt Securities") with an
aggregate initial offering price not to exceed $500,000,000 (or the equivalent
in foreign currency or units based on or relating to currencies, including
European Currency Units). The Company will offer Debt Securities to the public
on terms determined by market conditions. Debt Securities may be issuable in
registered form without coupons or in bearer form with or without coupons
attached. Debt Securities may be sold for, and principal of and any premium or
interest on Debt Securities may be payable in, U.S. dollars, foreign currency
or currency units -- in each case, as the Company specifically designates.
The applicable Prospectus Supplement will set forth with respect to the
Debt Securities being offered thereby the ranking as senior or subordinated
Debt Securities, the specific designation, aggregate principal amount,
purchase price, maturity, interest rate (or manner of calculation thereof) and
time of payment of interest (if any), redemption provisions (if any), listing
(if any) on a securities exchange and any other specific terms of such Debt
Securities and the name of and compensation to each dealer, underwriter or
agent (if any) involved in the sale of such Debt Securities. The managing
underwriters with respect to each series sold to or through underwriters will
be named in the applicable 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.
-------------------
Debt Securities may be offered through dealers, underwriters or agents
designated from time to time, as set forth in the applicable Prospectus
Supplement. Net proceeds to the Company will be the purchase price in the case
of a dealer, the public offering price less discount in the case of an
underwriter or the purchase price less commission in the case of an
agent -- in each case, less other expenses attributable to issuance and
distribution. The Company may also sell Debt Securities directly to investors
on its own behalf. In the case of sales made directly by the Company, no
commission will be payable. See "Plan of Distribution" for possible
indemnification arrangements for dealers, underwriters and agents.
-------------------
The date of this Prospectus is June , 1995
- -------------------------------------------------------------------------------
| INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. |
| A REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED |
| WITH THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY |
| NOT BE SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE |
| REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT |
| CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY |
| NOR SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN |
| WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO |
| REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH |
| STATE. |
- -------------------------------------------------------------------------------
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN 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 BY THE COMPANY OR ANY UNDERWRITER, DEALER OR AGENT. NEITHER THE
DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY
CIRCUMSTANCES CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY DEBT
SECURITIES BY ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION
IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS
NOT QUALIFIED TO DO SO OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH
OFFER OR SOLICITATION.
-------------------
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"). Reports, proxy statements and other information
filed by the Company with the Commission can be inspected and copied at the
public reference facilities maintained by the Commission at Room 1024, 450
Fifth Street, N.W, Washington, D.C. 20549 or at its Regional Offices located
at Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661 and 13th Floor, 7 World Trade Center, New York, New York 10048,
and copies of such material can be obtained from the Public Reference Section
of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates. Such material can also be inspected at the office of the New
York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005, on which
exchange certain of the Company's securities are listed.
The Prospectus constitutes a part of a Registration Statement on Form S-3
(the "Registration Statement") filed by the Company with the Commission under
the Securities Act of 1933, as amended (the "Securities Act"). This Prospectus
omits certain of the information contained in the Registration Statement in
accordance with the rules and regulations of the Commission. Reference is
hereby made to the Registration Statement and related exhibits for further
information with respect to the Company and the Debt Securities. Statements
contained herein concerning the provisions of any document are not necessarily
complete and, in each instance, reference is made to the copy of such document
filed as an exhibit to the Registration Statement or otherwise filed with the
Commission. Each such statement is qualified in its entirety by such
reference.
-------------------
INCORPORATION OF DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the year ended July 2, 1994
(including only those portions of the Company's proxy statement required to be
incorporated by reference therein), its Quarterly Report on Form 10-Q for the
quarter ended October 1, 1994, its Quarterly Report on Form 10-Q for the
quarter ended December 31, 1994 and its Quarterly Report on Form 10-Q for the
quarter ended April 1, 1995 have been filed by the Company with the Commission
and are incorporated herein by reference.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior
to the termination of the offering of any series of 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 herein or in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such
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statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
Copies of the above documents (excluding exhibits unless specifically
incorporated by reference into the documents that this Prospectus
incorporates) may be obtained by persons to whom this Prospectus is delivered
without charge upon written request to La Dee G. Riker, Vice President and
Secretary, Sysco Corporation, 1390 Enclave Parkway, Houston, Texas, 77077-2099
(telephone number (713) 584-1390).
-------------------
IN CONNECTION WITH AN OFFERING OF DEBT SECURITIES, THE UNDERWRITERS MAY
OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET
PRICES OF THE DEBT SECURITIES OFFERED HEREBY OR OTHER SECURITIES OF THE
COMPANY AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN
MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE OR IN
THE OVER-THE-COUNTER MARKET. SUCH STABILIZING, IF COMMENCED, MAY BE
DISCONTINUED AT ANY TIME.
3
SYSCO CORPORATION
GENERAL
Sysco Corporation (together with its subsidiaries and divisions
hereinafter referred to as "SYSCO" or the "Company") is the largest U.S.
distributor of food and related products to the foodservice or
"away-from-home-eating" industry. The Company provides its products and
services to approximately 245,000 restaurants, hotels, schools, hospitals,
retirement homes and other institutions throughout the continental United
States, including the 150 largest metropolitan areas, as well as the Pacific
coast region of Canada. Since the Company's formation in 1969, annual sales
have grown from approximately $115 million to nearly $11 billion in fiscal
1994. Taking advantage of innovations in food technology, improved packaging
and advanced distribution techniques, SYSCO is committed to providing its
customers with timely delivery of quality products at reasonable prices.
The Company, a Delaware corporation, has its principal executive offices
at 1390 Enclave Parkway, Houston, Texas 77077-2099 (telephone number (713)
584-1390).
RATIO OF EARNINGS TO FIXED CHARGES
The Company's ratio of earnings to fixed charges for the 1990, 1991, 1992,
1993 and 1994 fiscal years and for the 39-week period ended April 1, 1995 were
4.6x, 5.7x, 7.2x, 9.2x, 10.8x and 10.5x, respectively. For the purpose of
calculating this ratio, earnings consist of earnings before income taxes and
fixed charges. Fixed charges consist of interest expense and capitalized
interest.
USE OF PROCEEDS
Unless otherwise set forth in the applicable Prospectus Supplement, the
net proceeds from the sale of the Debt Securities will be used for general
corporate purposes, which may include additions to working capital, capital
expenditures, acquisitions, stock repurchases and repayment of indebtedness.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will constitute either senior or subordinated debt of
the Company and will be issued, in the case of senior debt, under a Senior
Debt Indenture (the "Senior Debt Indenture"), as it may be amended and
supplemented from time to time, between the Company and First Union National
Bank of North Carolina, as Trustee, and, in the case of subordinated debt,
under a Subordinated Debt Indenture (the "Subordinated Debt Indenture"), as it
may be amended and supplemented from time to time, between the Company and the
trustee to be named in the Prospectus Supplements relating to subordinated
debt. The Senior Debt Indenture and the Subordinated Debt Indenture are
sometimes hereinafter referred to individually as an "Indenture" and
collectively as the "Indentures." First Union National Bank of North Carolina
and the trustee to be named in the Prospectus Supplements relating to
subordinated debt are hereinafter referred to individually as a "Trustee" and
collectively as the "Trustees." The Indentures are included as exhibits to the
Registration Statement of which this Prospectus is a part. The following
summaries of certain provisions of the Indentures and the Debt Securities do
not purport to be complete and such summaries are subject to the detailed
provisions of the applicable Indenture to which reference is hereby made for a
full description of such provisions, including the definition of certain terms
used herein, and for other information regarding the Debt Securities.
Numerical references in parentheses below are to sections in the applicable
Indenture. Wherever particular sections or defined terms of the applicable
Indenture are referred to, such sections or defined terms are incorporated
herein by reference as part of the statement made, and the statement is
qualified in its entirety by such reference. The Indentures are substantially
identical, except for the provisions relating to subordination and certain
covenants. See "Senior Debt" and "Subordinated Debt."
4
GENERAL
The Indentures do not limit the amount of additional indebtedness the
Company or any of its subsidiaries may incur. The Debt Securities will be
unsecured senior or subordinated obligations of the Company.
The Indentures provide that Debt Securities may be issued from time to
time in one or more series.
Reference is made to the Prospectus Supplement for the following terms of
and information relating to the Debt Securities of any series (to the extent
such terms are applicable): (i) the classification as senior or subordinated
Debt Securities, the specific designation, aggregate principal amount and
purchase price; (ii) the currency or units based on or relating to currencies
in which such Debt Securities are denominated and/or in which principal,
premium, if any, and/or interest, if any, will or may be payable; (iii) the
date or dates of maturity; (iv) any redemption, repayment or sinking fund
provisions; (v) the interest rate or rates, if any, and the dates on which any
such interest will be payable (or the method by which such rate or rates or
dates will be determined); (vi) the method by which amounts payable in respect
of principal, premium, if any, or interest, if any, on such Debt Securities
may be calculated, and any currencies, commodities or indices, or value, rate
or price, relevant to such calculation; (vii) the place or places where the
principal of, premium, if any, and interest, if any, on such Debt Securities
will be payable; (viii) whether such Debt Securities will be issuable in
registered form, without coupons, or bearer form, with or without coupons
("Bearer Securities") or both and, if Bearer Securities are issuable, any
restrictions applicable to the exchange of one form for another and to the
offer, sale and delivery of Bearer Securities; (ix) whether such Debt
Securities are to be issued in whole or in part in the form of one or more
temporary or permanent global Debt Securities and if so, the identity of the
depositary, if any, for such global Debt Securities; (x) any applicable United
States federal income tax consequences, including whether and under what
circumstances the Company will pay additional amounts on such Debt Securities
held by a person who is not a U.S. person (as defined in the Prospectus
Supplement) in respect of any tax, assessment or governmental charge withheld
or deducted and, if so, whether the Company will have the option to redeem
such Debt Securities rather than pay such additional amounts; (xi) the terms
and conditions upon which and the manner in which such Debt Securities may be
defeased or discharged if different from the defeasance provisions described
below; and (xii) any other specific terms of such Debt Securities, including
any additional or different events of default or covenants provided for with
respect to such Debt Securities, and any terms which may be required by or
advisable under applicable laws or regulations.
Debt Securities may be presented for exchange and registered Debt
Securities may be presented for transfer in the manner, at the places and
subject to the restrictions set forth in the Debt Securities and the
applicable Indenture. Such services will be provided without charge, other
than any tax or other governmental charge payable in connection therewith, but
subject to the limitations provided in the applicable Indenture. Bearer
Securities and the coupons, if any, appertaining thereto will be transferable
by delivery.
Debt Securities may bear interest at a fixed rate or a floating rate. Debt
Securities bearing no interest or interest at a rate that at the time of
issuance is below the prevailing market rate will be sold at a discount below
their stated principal amount. Special United States federal income tax
considerations applicable to any such discounted Debt Securities or to certain
Debt Securities issued at par which are treated as having been issued at a
discount for United States federal income tax purposes are described in the
relevant Prospectus Supplement.
Debt Securities may be issued from time to time with payment terms which
are calculated by reference to the value, rate or price of one or more
currencies, commodities, indices or other factors. Holders of such Debt
Securities may receive a principal amount (including premium, if any) on any
principal payment date, or a payment of interest on any interest payment date,
that is greater than or less than the amount of principal (including premium,
if any) or interest otherwise payable on such
5
dates, depending upon the value, rate or price on such dates of the applicable
currency, commodity, index or other factor. Information as to the methods for
determining the amount of principal, premium, if any, or interest payable on
any date, the currencies, commodities, indices or other factors to which the
amount payable on such date is linked and certain additional tax
considerations will be set forth in the applicable Prospectus Supplement.
Unless otherwise set forth in the Prospectus Supplement, the Debt
Securities will not contain any provisions which may afford holders of the
Debt Securities protection in the event of a change in control of the Company
or in the event of a highly leveraged transaction (whether or not such
transaction results in a change in control of the Company).
Under a Note Agreement, dated as of June 1, 1989 relating to $91,500,000
principal amount of the Company's 9.95% Senior Notes Due June 15, 1989 (the
"1989 Notes"), the Company has agreed to offer to repurchase the 1989 Notes
from the holders thereof upon a change in control of the Company (as defined)
and the occurrence of the condition described below. The repurchase is to
occur 90 days after the Company notifies the holders of the 1989 Notes that,
at any time within 12 months after a change in control occurs, the ratio of
(x) consolidated short term debt plus consolidated funded debt to (y)
consolidated capitalization plus short term debt exceeds 80%. The Note
Agreement has been filed as an Exhibit to the Company's Annual Report on Form
10-K for the year ended July 2, 1994.
GLOBAL SECURITIES
REGISTERED GLOBAL SECURITIES. The registered Debt Securities of a series
may be issued in the form of one or more fully registered global Securities (a
"Registered Global Security") that will be deposited with (and registered in
the name of) a depositary (a "Depositary") identified in the Prospectus
Supplement relating to such series or a nominee of the Depositary. Unless and
until it is exchanged in whole for Debt Securities in definitive registered
form, a Registered Global Security may not be transferred except as a whole by
the Depositary for such Registered Global 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.
The specific terms of the depositary arrangement with respect to any
portion of a series of Debt Securities to be represented by a Registered
Global Security will be described in the Prospectus Supplement relating to
such series. The Company anticipates that the following provisions will apply
to all depositary arrangements.
Ownership of beneficial interests in a Registered Global Security will be
limited to persons that have accounts with the Depositary for such Registered
Global Security ("participants") or persons that may hold interests through
participants. Upon the issuance of a Registered Global Security, the
Depositary for such Registered Global Security will credit, on its book-entry
registration and transfer system, the participants' accounts with the
respective principal amounts of the Debt Securities represented by such
Registered Global Security beneficially owned by or through such participants.
The accounts to be credited initially shall be designated by any dealers,
underwriters or agents participating in the distribution of such Debt
Securities or by the Company, if such Debt Securities are offered and sold
directly by the Company. Ownership of beneficial interests in such Registered
Global Security will be shown on, and the transfer of such ownership interests
will be effected only through, records maintained by the Depositary for such
Registered Global Security (with respect to interests of participants) and on
the records of participants (with respect to interests of persons holding
through participants). The laws of some states and countries other than the
United States may require that certain purchasers of securities take physical
delivery of such securities in definitive form. Such limits and such laws may
impair the ability to own, transfer or pledge beneficial interests in
Registered Global Securities.
6
So long as the Depositary for a Registered Global Security, or its
nominee, is the registered owner of such Registered Global Security, such
Depositary or such nominee, as the case may be, will be considered the sole
owner or holder of the Debt Securities represented by such Registered Global
Security for all purposes under the applicable Indenture. Except as set forth
below, owners of beneficial interests in a Registered Global Security will not
be entitled to have the Debt Securities represented by such Registered Global
Security registered in their names, will not receive or be entitled to receive
physical delivery of such Debt Securities in definitive form and will not be
considered the owners or holders thereof under such Indenture. Accordingly,
each person owning a beneficial interest in a Registered Global Security must
rely on the procedures of the Depositary for such Registered Global Security
and, if such person is not a participant, on the procedures of the participant
through which such person owns its interest, to exercise any rights of a
holder under such Indenture. The Company understands that under existing
industry practices, if the Company requests any action of holders or if an
owner of a beneficial interest in a Registered Global Security desires to give
or take any action which a holder is entitled to give or take under the
Indenture, the Depositary for such Registered Global Security generally either
(i) authorizes the participants holding the relevant beneficial interests to
give or take such action, and such participants would authorize beneficial
owners owning through such participants to give or take such action, or (ii)
otherwise acts upon the instructions of beneficial owners holding through
them.
Payments of principal, premium, if any, and interest, if any, on Debt
Securities represented by a Registered Global Security registered in the name
of a Depositary or its nominee will be made to such Depositary or its nominee,
as the case may be, as the registered owner of such Registered Global
Security. None of the Company, the Trustee or any other agent of the Company
or of the Trustee will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests in such Registered Global Security or for maintaining, supervising
or reviewing any records relating to such beneficial ownership interests.
The Company expects that the Depositary for any Debt Securities
represented by a Registered Global Security, upon receipt of any payment of
principal, premium or interest in respect of such Registered Global Security,
will immediately credit participants' accounts with payments in amounts
proportionate to their respective beneficial interests in such Registered
Global Security as shown on the records of such Depositary. The Company also
expects that payments by participants to owners of beneficial interests in
such Registered Global Security held through such participants will be the
responsibility of such participants and will be governed by standing customer
instructions and customary practices, as is now the case with securities held
for the accounts of customers or registered in "street name."
If the Depositary for any Debt Securities represented by a Registered
Global Security is at any time unwilling or unable to continue as Depositary
(because it is no longer a clearing agency registered under the Exchange Act),
and a successor Depositary registered as a clearing agency under the Exchange
Act is not appointed by the Company within 90 days, the Company will issue
such Debt Securities in definitive form in exchange for such Registered Global
Security. In addition, the Company may at any time and in its sole discretion
determine not to have any of the Debt Securities of a series represented by
one or more Registered Global Securities and, in such event, will issue Debt
Securities of such series in definitive form in exchange for all of the
Registered Global Security or Securities representing such Debt Securities.
Any Debt Securities issued in definitive form in exchange for a Registered
Global Security will be registered in such name or names as the Depositary
shall instruct the applicable Trustee. It is expected that such instructions
will be based upon directions received by the Depositary from participants
with respect to ownership of beneficial interests in such Registered Global
Security.
BEARER GLOBAL SECURITIES. The Debt Securities of a series may also be
issued in the form of one or more bearer global Debt Securities (a "Bearer
Global Security") that will be deposited with a common depositary for Morgan
Guaranty Trust Company of New York, Brussels office, as operator
7
of the Euro-clear System and Centrale de Livraison de Valeurs Mobilieres S.A.,
or with a nominee for such depositary identified in the Prospectus Supplement
relating to such series. The specific terms and procedures, including the
specific terms of the depositary arrangement, with respect to any portion of a
series of Debt Securities to be represented by a Bearer Global Security will
be described in the Prospectus Supplement relating to such series.
SENIOR DEBT
The Debt Securities (and, in the case of Bearer Securities, any coupons
appertaining thereto) issued under the Senior Debt Indenture (the "Senior Debt
Securities") will rank PARI PASSU with all other unsecured and unsubordinated
debt of the Company and senior to the Subordinated Debt Securities (as
hereinafter defined).
LIMITATIONS ON LIENS. The Company covenants in the Senior Debt Indenture
that it will not, and will not permit any Subsidiary to, issue, incur, create,
assume or guarantee any debt for borrowed money (including all obligations
evidenced by bonds, debentures, notes or similar instruments) secured by a
mortgage, security interest, pledge, lien, charge or other encumbrance
("mortgage") upon any Principal Property or upon any shares of stock or
indebtedness of any Subsidiary that owns or leases a Principal Property
(whether such Principal Property, shares or indebtedness are now existing or
owed or hereafter created or acquired) without in any such case effectively
providing concurrently with the issuance, incurrence, creation, assumption or
guaranty of any such secured debt, or the grant of such mortgage, that the
Senior Debt Securities (together with, if the Company shall so determine, any
other indebtedness of or guarantee by the Company or such Subsidiary ranking
equally with the Senior Debt Securities) shall be secured equally and ratably
with (or, at the option of the Company, prior to) such secured debt. The
foregoing restriction, however, will not apply to each of the following: (a)
mortgages on property, shares of stock or indebtedness or other assets of any
corporation existing at the time such corporation becomes a Subsidiary,
PROVIDED that such mortgages or liens are not incurred in anticipation of such
corporation's becoming a Subsidiary; (b) mortgages on property, shares of
stock or indebtedness or other assets existing at the time of acquisition
thereof by the Company or a Subsidiary or mortgages thereon to secure the
payment of all or any part of the purchase price thereof, or mortgages on
property, shares of stock or indebtedness or other assets to secure any debt
incurred prior to, at the time of, or within 180 days after, the latest of the
acquisition thereof or, in the case of property, the completion of
construction, the completion of improvements or the commencement of
substantial commercial operation of such property for the purpose of financing
all or any part of the purchase price thereof, such construction or the making
of such improvements; (c) mortgages to secure indebtedness owing to the
Company or to a Subsidiary; (d) mortgages existing at the date of the initial
issuance of any Senior Debt Securities then outstanding; (e) mortgages on
property of a person existing at the time such person is merged into or
consolidated with the Company or a Subsidiary or at the time of a sale, lease
or other disposition of the properties of a person as an entirety or
substantially as an entirety to the Company or a Subsidiary, PROVIDED that
such mortgage was not incurred in anticipation of such merger or consolidation
or sale, lease or other disposition; (f) mortgages in favor of the United
States of America or any state, territory or possession thereof (or the
District of Columbia), or any department, agency, instrumentality or political
subdivision of the United States of America or any state, territory or
possession thereof (or the District of Columbia), to secure partial, progress,
advance or other payments pursuant to any contract or statute or to secure any
indebtedness incurred for the purpose of financing all or any part of the
purchase price or the cost of constructing or improving the property subject
to such mortgages; or (g) extensions, renewals or replacements of any mortgage
referred to in the foregoing clauses (a), (b), (d), (e) or (f); PROVIDED,
HOWEVER, that the principal amount of indebtedness secured thereby shall not
exceed the principal amount of indebtedness so secured at the time of such
extension, renewal or replacement. Any mortgages permitted by any of the
foregoing clauses (a) through (g) shall not extend to or cover any other
Principal Property of the Company or any Subsidiary or any shares of stock or
indebtedness of any such Subsidiary, subject to the foregoing limitations,
other than the property,
8
including improvements thereto, stock or indebtedness specified in such
clauses. (Senior Debt Indenture Section 3.7)
Notwithstanding the restrictions in the preceding paragraph, the Company
or any Subsidiary may issue, incur, create, assume or guarantee debt secured
by a mortgage which would otherwise be subject to such restrictions, without
equally and ratably securing the Senior Debt Securities, PROVIDED that after
giving effect thereto, the aggregate amount of all debt so secured by
mortgages (not including mortgages permitted under clauses (a) through (g)
above) does not exceed 20% of the Consolidated Net Tangible Assets of the
Company. (Senior Debt Indenture Section 3.7)
LIMITATIONS ON SALE AND LEASE-BACK TRANSACTIONS. The Company covenants in
the Senior Debt Indenture that it will not, nor will it permit any Subsidiary
to, enter into any Sale and Lease-Back Transaction with respect to any
Principal Property, other than any such transaction involving a lease for a
term of not more than three years or any such transaction between the Company
and a Subsidiary or between Subsidiaries, unless: (a) the Company or such
Subsidiary would be entitled to incur indebtedness secured by a mortgage on
the Principal Property involved in such transaction at least equal in amount
to the Attributable Debt with respect to such Sale and Lease-Back Transaction,
without equally and ratably securing the Senior Debt Securities, pursuant to
the limitation on liens described above; or (b) the proceeds of such
transaction are at least equal to the fair market value of the affected
Principal Property (as determined in good faith by the Board of Directors of
the Company) and the Company applies an amount equal to the greater of the net
proceeds of such sale or the Attributable Debt with respect to such Sale and
Lease-Back Transaction within 180 days of such sale to either (or a
combination of) (i) the retirement (other than any mandatory retirement,
mandatory prepayment or sinking fund payment or by payment at maturity) of
debt for borrowed money of the Company or a Subsidiary (other than debt that
is subordinated to the Senior Debt Securities or debt to the Company or a
Subsidiary) that matures more than 12 months after its creation or (ii) the
purchase, construction or development of other comparable property. (Senior
Debt Indenture Section 3.8)
"Attributable Debt" with regard to a Sale and Lease-Back Transaction with
respect to any property is defined in the Senior Debt Indenture to mean, at
the time of determination, the lesser of: (a) the fair market value of such
property (as determined in good faith by the Board of Directors of the
Company); or (b) the present value of the total net amount of rent required to
be paid under such lease during the remaining term thereof (including any
period for which such lease has been extended), discounted at the rate of
interest set forth or implicit in the terms of such lease (or, if not
practicable to determine such rate, the Composite Rate) compounded
semi-annually. In the case of any lease which is terminable by the lessee upon
the payment of a penalty, such net amount shall be the lesser of the net
amount determined assuming termination upon the first date such lease may be
terminated (in which case the net amount shall also include the amount of the
penalty, but no rent shall be considered as required to be paid under such
lease subsequent to the first date upon which it may be so terminated) or the
net amount determined assuming no such termination.
"Composite Rate" is defined in the Senior Debt Indenture to mean, at any
time, the rate of interest, per annum, compounded semi-annually, equal to the
sum of the rates of interest borne by each of the Senior Debt Securities
outstanding under the Senior Debt Indenture (as specified on the face of each
of the Senior Debt Securities, PROVIDED, that, in the case of the Senior Debt
Securities with variable rates of interest, the interest rate to be used in
calculating the Composite Rate shall be the interest rate applicable to such
Senior Debt Securities at the beginning of the year in which the Composite
Rate is being determined and, PROVIDED, FURTHER, that, in the case of Senior
Debt Securities which do not bear interest, the interest rate to be used in
calculating the Composite Rate shall be a rate equal to the yield to maturity
on such Senior Debt Securities, calculated at the time of issuance of such
Senior Debt Securities) multiplied, in the case of each of the Senior Debt
Securities, by the percentage of the aggregate principal amount of all of the
Senior Debt Securities then outstanding represented by such Senior Debt
Security. For the purposes of this calculation, the aggregate principal
9
amounts of outstanding Senior Debt Securities that are denominated in a
foreign currency shall be calculated in the manner set forth in Section 11.11
of the Senior Debt Indenture.
"Consolidated Net Tangible Assets" is defined in the Senior Debt Indenture
to mean, as of any particular time, the aggregate amount of assets (less
applicable reserves and other properly deductible items) after deducting
therefrom: (a) all current liabilities, except for current maturities of
long-term debt and of obligations under capital leases; and (b) all goodwill,
trade names, trademarks, patents, unamortized debt discount and expense and
other like intangible assets, to the extent included in said aggregate amount
of assets, all as set forth on the most recent consolidated balance sheet of
the Company and its consolidated subsidiaries and computed in accordance with
generally accepted accounting principles.
"Principal Property" is defined in the Senior Debt Indenture to mean the
land, improvements, buildings and fixtures (including any leasehold interest
therein) constituting the principal corporate office, any manufacturing plant,
any manufacturing, distribution or research facility or any self-serve center
(in each case, whether now owned or hereafter acquired) which is owned or
leased by the Company or any Subsidiary and is located within the United
States of America or Canada unless the Board of Directors of the Company has
determined in good faith that such office, plant facility or center is not of
material importance to the total business conducted by the Company and its
Subsidiaries taken as a whole. With respect to any Sale and Lease-Back
Transaction or series of related Sale and Lease-Back Transactions, the
determination of whether any property is a Principal Property shall be
determined by reference to all properties affected by such transaction or
series of transactions.
"Sale and Lease-Back Transaction" is defined in the Senior Debt Indenture
to mean any arrangement with any person providing for the leasing by the
Company or any Subsidiary of any Principal Property which property has been or
is to be sold or transferred by the Company or such Subsidiary to such person.
"Subsidiary" is defined in the Senior Debt Indenture to mean any
corporation of which outstanding voting stock having the power to elect a
majority of the board of directors of such corporation is at the time owned,
directly or indirectly, by the Company or by one or more other Subsidiaries,
or by the Company and one or more other Subsidiaries. For the purposes of this
definition, "voting stock" means stock which ordinarily has voting power for
the election of directors, whether at all times or only so long as no senior
class of stock has such voting power by reason of any contingency. (Senior
Debt Indenture Sections 1.1, 3.7 and 3.8)
SUBORDINATED DEBT
The Debt Securities (and, in the case of Bearer Securities, any coupons
appertaining thereto) issued under the Subordinated Debt Indenture (the
"Subordinated Debt Securities") will rank junior to "Senior Indebtedness" (as
such term is defined in the Subordinated Debt Indenture). The payment of the
principal, premium, if any, and interest on the Subordinated Debt Securities
is subordinated and junior in right of payment, to the extent set forth in the
Subordinated Debt Indenture, to the prior payment in full of all "Senior
Indebtedness." Until such prior payment in full, no payment (including the
making of any deposit in trust with the Trustee in accordance with Section
10.1 of the Subordinated Debt Indenture) on account of principal, premium, if
any, or interest on any Subordinated Debt Securities or payment to acquire any
of the Subordinated Debt Securities for cash or property may be made if, at
the time of such payment or immediately after giving effect thereto, (i) any
insolvency, bankruptcy proceedings, receivership, liquidation or
reorganization of the Company, or the voluntary liquidation, dissolution or
winding up of the Company or the assignment for the benefit of creditors or
any other marshalling of assets of the Company shall have occurred, (ii) any
Subordinated Debt Security is declared due and payable before its expressed
maturity because of the occurrence of an Event of Default under the
Subordinated Debt Indenture (see "Events of Default" below), (iii) there shall
exist a default in the payment of the principal, premium, if any, or interest
10
with respect to any Senior Indebtedness, or (iv) for a period of 180 days
after delivery of notice referred to below, there shall exist a default (other
than a default in the payment of principal, premium, if any, or interest) with
respect to any Senior Indebtedness permitting the holders thereof to
accelerate the maturity thereof and written notice of such default shall have
been given to the Company and the Trustee pursuant to the Subordinated Debt
Indenture; PROVIDED that only one such 180-day blockage period following such
a notice of default may be commenced within any 365 consecutive days and no
default which existed on the date any blockage period commenced shall be the
basis for the commencement of any subsequent blockage period unless such
default is cured or waived for a period of not less than 90 consecutive days.
The foregoing provision shall not prevent the Trustee from making payments on
any Subordinated Debt Securities from monies or securities deposited with the
Trustee pursuant to the terms of Section 10.1 of the Subordinated Debt
Indenture if at the time such deposit was made or immediately after giving
effect thereto the above conditions did not exist. (Subordinated Debt
Indenture, Sections 13.1, 13.2 and 13.3)
Under the Subordinated Debt Indenture, the term "Senior Indebtedness"
means (a) all indebtedness and obligations of the Company existing on the date
of the Subordinated Debt Indenture or created, incurred or assumed thereafter,
and which (i) are for money borrowed; (ii) are evidenced by any bond, note,
debenture or similar instrument; (iii) represent the unpaid balance on the
purchase price of any assets or services of any kind; (iv) are obligations as
lessee under any lease of property, equipment or other assets required to be
capitalized on the balance sheet of the lessee under generally accepted
accounting principles; (v) are reimbursement obligations with respect to
letters of credit or other similar instruments; (vi) are obligations under
interest rate, currency or other indexed exchange agreements, agreements for
caps or floors on interest rates, foreign exchange agreements or any other
similar agreements; (vii) are obligations under any guaranty, endorsement or
other contingent obligations in respect of, or to purchase or otherwise
acquire, indebtedness or obligations of other persons of the types referred to
in clauses (i) through (vi) above (other than endorsements for collection or
deposits in the ordinary course of business); or (viii) are obligations of
other persons of the type referred to in clauses (i) through (vii) above
secured by a lien to which any of the properties or assets of Company are
subject, whether or not the obligations secured thereby shall have been issued
by the Company or shall otherwise be the legal liability of the Company; and
(b) any deferrals, renewals, amendments, modifications, refundings or
extensions of any such indebtedness or obligations of the types referred to
above; notwithstanding the foregoing, Senior Indebtedness shall not include
(1) any indebtedness of the Company to any of its subsidiaries, (2) any
indebtedness or obligation of the Company which by its express terms is stated
to be not superior in the right of payment to the Subordinated Debt Securities
or to rank PARI PASSU with, or to be subordinated to, the Subordinated Debt
Securities or (3) any indebtedness or obligation incurred by the Company in
connection with the purchase of any assets or services in the ordinary course
of business and which constitutes a trade payable or account payable.
(Subordinated Debt Indenture, Section 1.1)
By reason of such subordination, in the event of insolvency, creditors of
the Company (including holders of Subordinated Debt Securities) who are not
holders of Senior Indebtedness may recover less, ratably, than holders of
Senior Indebtedness.
If this Prospectus is being delivered in connection with a series of
Subordinated Debt Securities, the applicable Prospectus Supplement or the
information incorporated herein by reference will set forth the approximate
amount of Senior Indebtedness outstanding as of the end of the most recent
fiscal quarter.
MERGER OR CONSOLIDATION
Each of the Indentures provides that the Company may not merge or
consolidate with any other person or persons (whether or not affiliated with
the Company) or sell, convey, transfer or lease all or substantially all of
its Property to any other person or persons (whether or not affiliated with
the Company), unless (a) either the Company shall be the continuing person, or
the successor person or the person which acquires by sale, conveyance,
transfer or lease substantially all the property of the
11
Company (if other than the Company) shall be a corporation organized under the
laws of the United States or any state thereof and shall expressly assume all
the obligations of the Company under such Indenture and the relevant Debt
Securities and coupons and (b) immediately after giving effect to such merger,
consolidation, sale, conveyance, transfer or lease, no Event of Default or
event or condition which, after notice or lapse of time or both, would become
an Event of Default with respect to the Debt Securities of any series under
such Indenture shall have occurred and be continuing. After any such transfer
(except in the case of a lease), the Company shall be discharged from all
obligations and covenants under such Indenture. (Senior and Subordinated Debt
Indentures, Sections 9.1 and 9.2)
EVENTS OF DEFAULT
An Event of Default is defined under each Indenture with respect to Debt
Securities of any series issued under such Indenture as being: (a) default in
payment of any principal of or premium, if any, on the Debt Securities of such
series, either at maturity, upon any redemption, by declaration or otherwise
(including a default in the deposit of any sinking fund payment with respect
to the Debt Securities of such series when and as due); (b) default for 30
days in payment of any interest on any Debt Securities of such series; (c)
default for 90 days after written notice in the observance or performance of
any other covenant or agreement in the Debt Securities of such series or such
Indenture other than a covenant or agreement which is not applicable to the
Debt Securities of such series; (d) certain events of bankruptcy, insolvency
or reorganization; or (e) any other Event of Default provided in the
supplemental indenture under which such series of Debt Securities is issued,
in the form of Debt Security for such series or otherwise established as
contemplated by the Senior and Subordinated Debt Indentures. (Senior and
Subordinated Debt Indentures, Section 5.1)
Each Indenture provides that (a) if an Event of Default due to the default
in payment of principal of, premium, if any, or interest on, any series of
Debt Securities issued under such Indenture or due to the default in the
performance of any other covenant or agreement of the Company applicable to
the Debt Securities of such series but not applicable to Debt Securities of
any other series issued under such Indenture shall have occurred and be
continuing, either the Trustee or the holders of not less than 25% in
principal amount of the outstanding Debt Securities of such series may declare
the principal (or such portion thereof as may be specified in the terms
thereof) of all Debt Securities of such series and interest accrued thereon to
be due and payable immediately; and (b) if an Event of Default due to a
default in the performance of any covenants or agreements applicable to
outstanding Debt Securities of more than one series issued under such
Indenture shall have occurred and be continuing, either the Trustee or the
holders of not less than 25% in principal amount of outstanding Debt
Securities of all such affected series (treated as one class) may declare the
principal (or such portion thereof as may be specified in the terms thereof)
of all such Debt Securities and interest accrued thereon to be due and payable
immediately, but upon certain conditions such declarations may be annulled and
past defaults may be waived (except a continuing default in payment of
principal of (or premium, if any) or interest on such Debt Securities) by the
holders of a majority in principal amount of the outstanding Debt Securities
of all such affected series (treated as one class). If an Event of Default due
to certain events of bankruptcy, insolvency or reorganization shall occur, the
principal (or such portion thereof as may be specified in the terms thereof)
of and interest accrued on all Debt Securities then outstanding shall become
due and payable immediately, without action by the Trustees or the holders of
any such Debt Securities. (Senior and Subordinated Debt Indentures, Sections
5.1 and 5.10)
Each Indenture contains a provision entitling the Trustee, subject to the
duty of the Trustee during a default to act with the required standard of
care, to be indemnified by the holders of Debt Securities issued under such
Indenture before proceeding to exercise any right or power under such
Indenture at the request of such holders. (Senior and Subordinated Debt
Indentures, Section 5.6). Subject to such provisions for the indemnification
and certain other limitations, the holders of a majority in principal amount
of the outstanding Debt Securities of each affected series issued under
12
such Indenture (treated as one class) may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee with respect to such
series. (Senior and Subordinated Debt Indentures, Section 5.9)
Each Indenture provides that no holder of Debt Securities of any series or
of any coupon issued under such Indenture may institute any action against the
Company under such Indenture (except actions for payment of overdue principal,
premium, if any, or interest) unless (1) such holder previously shall have
given to the Trustee written notice of default and continuance thereof, (2)
the holders of not less than 25% in aggregate principal amount of the
outstanding Debt Securities of each affected series issued under such
Indenture (treated as one class) shall have requested the Trustee to institute
such action and shall have offered the Trustee reasonable indemnity, (3) the
Trustee shall not have instituted such action within 60 days of such request
and (4) the Trustee shall not have received direction inconsistent with such
written request by the holders of a majority in principal amount of the
outstanding Debt Securities of each affected series issued under such
Indenture (treated as one class). (Senior and Subordinated Debt Indentures,
Sections 5.6 and 5.9)
Each Indenture contains a covenant that the Company will file annually
with the Trustee a certificate to the effect that no default exists under such
Indenture or a certificate specifying any default that exists. (Senior and
Subordinated Debt Indentures, Section 3.5)
DEFEASANCE
Each Indenture provides that the Company may defease and be discharged
from any and all obligations (except as otherwise described in (a) below) with
respect to the Debt Securities of any series which have not already been
delivered to the Trustee for cancellation and which have either become due and
payable or are by their terms due and payable within one year (or scheduled
for redemption within one year) by irrevocably depositing with the Trustee, as
trust funds, money or, in the case of Debt Securities payable only in U.S.
dollars, U.S. Government Obligations (as defined) which through the payment of
principal and interest in accordance with their terms will provide money, in
an amount certified to be sufficient to pay at maturity (or upon redemption)
the principal of (and premium, if any) and interest on such Debt Securities.
In addition, each Indenture provides that with respect to each series of
Debt Securities issued under such Indenture, the Company may elect either (a)
to defease and be discharged from any and all obligations with respect to the
Debt Securities of such series (except for the obligations to register the
transfer or exchange of the Debt Securities of such series and of coupons
appertaining thereto, to replace temporary or mutilated, destroyed, lost or
stolen Debt Securities of such series and of coupons appertaining thereto, to
maintain an office or agency in respect of the Debt Securities of such series
and to hold moneys for payment in trust) or (b) to be released from the
restrictions described under "Senior Debt," if applicable, and "Merger or
Consolidation" and, to the extent specified in connection with the issuance of
such series of Debt Securities, other covenants applicable to such series of
Debt Securities, upon the deposit with the Trustee (or other qualifying
trustee), in trust for such purpose, of money or, in the case of Debt
Securities payable only in U.S. dollars, U.S. Government Obligations which
through the payment of principal and interest in accordance with their terms
will provide money, in an amount certified to be sufficient to pay at maturity
(or upon redemption) the principal of (and premium, if any) and interest on
the Debt Securities of such series. Such a trust may only be established if,
among other things, the Company has delivered to the Trustee an opinion of
counsel (as specified in the Indenture) to the effect that the holders of the
Debt Securities of such series will not recognize income, gain or loss for
Federal income tax purposes as a result of such 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 been the case if such defeasance had not occurred. Such
opinion, in the case of a defeasance under clause (a) above, must refer to and
be based upon a ruling of the Internal Revenue Service or a change in
applicable Federal income tax law occurring after the date of such Indenture.
13
In the event of any "legal" defeasance of any series of Subordinated Debt
Securities issued thereunder, the Subordinated Debt Indenture provides that
holders of all outstanding Senior Indebtedness will receive written notice of
such defeasance. (Senior and Subordinated Debt Indentures, Section 10.1)
The foregoing provisions relating to defeasance may be modified in
connection with the issuance of any series of Debt Securities, and any such
modification will be described in the applicable Prospectus Supplement.
MODIFICATION OF THE INDENTURES
Each Indenture provides that the Company and the Trustee may enter into
supplemental indentures without the consent of the holders of Debt Securities
to: (a) secure any Debt Securities, (b) evidence the assumption by a successor
corporation of the obligations of the Company, (c) add covenants or Events of
Default for the protection of the holders of any Debt Securities, (d) cure any
ambiguity or correct any inconsistency in such Indenture or add any other
provision which shall not adversely affect the interests of the holders of the
Debt Securities, (e) establish the forms or terms of Debt Securities of any
series or of the coupons appertaining to such Debt Securities, (f) change,
modify or eliminate any provision of the Senior Debt Indenture or the
Subordinated Debt Indenture which shall not be effective with respect to any
Debt Security issued prior to the execution of such supplemental indenture and
(g) evidence the acceptance of appointment by a successor trustee. (Senior and
Subordinated Debt Indentures, Section 8.1)
Each Indenture also contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than a majority in
principal amount of the Debt Securities of all series issued under such
Indenture then outstanding and affected (voting as one class), to add any
provisions to, or change in any manner or eliminate any of the provisions of,
such Indenture or modify in any manner the rights of the holders of the Debt
Securities of each series so affected; PROVIDED that the Company and the
Trustee may not, without the consent of the holder of each outstanding Debt
Security affected thereby, (a) extend the final maturity of any Debt Security,
or reduce the principal amount thereof, or reduce the rate (or alter the
method of computation) of interest thereon or reduce (or alter the method of
computation of) any amount payable in respect of or extend the time for
payment of interest thereon, or reduce any amount payable on or extend the
time for the redemption or repayment thereof or change the currency in which
the principal thereof, premium, if any, or interest thereon is payable or
reduce the amount payable upon acceleration or alter certain provisions of the
Indenture relating to the Debt Securities issued thereunder not denominated in
U.S. dollars or impair or affect the right to institute suit for the
enforcement of any payment on any Debt Security when due or, if the Debt
Securities provide therefor, any right of optional repayment at the option of
the holder of such Debt Securities or (b) modify any of the provisions of the
Indenture regarding modification of such Indenture, except to increase the
percentage in principal amount of Debt Securities of any series, the consent
of the holders of which is required for any such modification. (Senior and
Subordinated Debt Indentures, Section 8.2)
In addition, the Subordinated Debt Indenture provides that it may not be
amended to alter the subordination of any outstanding Subordinated Debt
Securities without the consent of each holder of Senior Indebtedness then
outstanding whose rights would be adversely affected thereby. (Subordinated
Debt Indenture, Section 8.6)
GOVERNING LAW
Each of the Indentures provide that it and the Debt Securities issued
thereunder shall be deemed to be a contract under, and for all purposes shall
be construed in accordance with, the laws of the State of New York.
14
CONCERNING THE SENIOR DEBT INDENTURE TRUSTEE
First Union National Bank of North Carolina, the Trustee under the Senior
Debt Indenture, is one of a number of banks with which the Company maintains
ordinary banking relationships.
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities being offered hereby in four
ways: (i) directly to purchasers, (ii) through agents, (iii) through
underwriters and (iv) through dealers.
Offers to purchase Debt Securities may be solicited by agents designated
by the Company from time to time. Any such agent, who may be deemed to be an
underwriter as that term is defined in the Securities Act, involved in the
offer or sale of any Debt Securities will be named, and any commissions
payable by the Company to such agent will be set forth, in the Prospectus
Supplement relating to such Debt Securities. Unless otherwise indicated in the
Prospectus Supplement, any such agent will be acting on a best efforts basis
for the period of its appointment. Agents may be entitled under agreements
which may be entered into with the Company to indemnification by the Company
against certain liabilities, including liabilities under the Securities Act,
and may be customers of, engage in transactions with or perform services for
the Company in the ordinary course of business.
If any underwriters are utilized in the sale of any Debt Securities, the
Company will enter into an underwriting agreement with such underwriters at
the time of sale to them and the names of the underwriters and the terms of
the transaction will be set forth in the Prospectus Supplement relating to
such Debt Securities, which will be used by the underwriters to make resales
of such Debt Securities. The underwriters may be entitled, under the relevant
underwriting agreement, to indemnification by the Company against certain
liabilities, including liabilities under the Securities Act, and may be
customers of, engage in transactions with or perform services for the Company
in the ordinary course of business.
If a dealer is utilized in the sale of any Debt Securities, the Company
will sell such Debt Securities to the dealer, as principal. The dealer may
then resell such Debt Securities to the public at varying prices to be
determined by such dealer at the time of resale. Dealers may be entitled under
agreements which may be entered into with the Company to indemnification by
the Company against certain liabilities, including liabilities under the
Securities Act, and may be customers of, engage in transactions with or
perform services for the Company in the ordinary course of business.
If so indicated in the Prospectus Supplement relating to such Debt
Securities, the Company will authorize agents, underwriters or dealers to
solicit offers by certain institutions to purchase Debt Securities from the
Company at the public offering price set forth in the Prospectus Supplement
pursuant to delayed delivery contracts ("Contracts") providing for payment and
delivery on the date or dates stated in such Prospectus Supplement. Contracts
may be entered into for a variety of reasons, including without limitation,
the need to assemble a pool of collateral, the need to match a refunding date
or interest coupon date, or to meet the business needs of the purchaser. Each
Contract will be for an amount not less than, and the aggregate principal
amount of Debt Securities sold pursuant to Contracts shall not be less nor
more than, the respective amounts stated in such Prospectus Supplement.
Institutions with whom Contracts, when authorized, may be made include
commercial and savings banks, insurance companies, pension funds, investment
companies, education and charitable institutions and other institutions, but
will in all cases be subject to the approval of the Company. Contracts will
not be subject to any conditions except that (i) the purchase by a purchaser
of the Debt Securities covered by its Contract shall not at the time of
delivery be prohibited under the laws of any jurisdiction in the United States
to which such purchaser is subject and (ii) the Company shall have sold, and
delivery shall have taken place to the underwriters named in the Prospectus
Supplement, such part of the Debt Securities as is to be sold to them. The
Prospectus Supplement will set forth the commission payable to agents,
underwriters or dealers soliciting purchases of Debt Securities pursuant to
Contracts accepted by the Company. The underwriters and such agents or dealers
will not have any responsibility in respect of the validity or performance of
Contracts.
15
Each series of Debt Securities will be a new issue of securities with no
established trading market. Any underwriters to whom Debt Securities are sold
by the Company for public offering and sale may make a market in such Debt
Securities, but such underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. No assurance can be
given as to the liquidity of the trading market for any Debt Securities.
LEGAL OPINIONS
The validity of the Debt Securities is being passed upon for the Company
by Arnall Golden & Gregory, Atlanta, Georgia. Such firm will rely, as to
matters of New York law, upon Baker & Botts, L.L.P., Dallas, Texas.
Certain legal matters relating to offerings of Debt Securities will be
passed upon on behalf of the applicable dealers, underwriters or agents by
counsel named in the applicable Prospectus Supplement.
EXPERTS
The consolidated balance sheets as of July 2, 1994 and July 3, 1993, and
the consolidated results of operations, shareholders' equity, cash flows and
schedules for each of the three years in the period ended July 2, 1994, have
been audited by Arthur Andersen LLP, independent public accountants, as
indicated in their reports with respect thereto, and are incorporated herein
by reference in reliance upon the authority of said firm as experts in
accounting and auditing in giving said reports.
With respect to the unaudited interim financial information for the
quarters ended October 1, 1994, December 31, 1994 and April 1, 1995, Arthur
Andersen LLP has applied limited procedures in accordance with professional
standards for a review of that information. However, their separate reports
thereon state that they did not audit and they do not express an opinion on
that interim financial information. Accordingly, the degree of reliance on
their reports on that information should be restricted in light of the limited
nature of the review procedures applied. In addition, the accountants are not
subject to the liability provisions of Section 11 of the Securities Act of
1933 for their reports on the unaudited interim financial information because
those reports are not a "report" or a "part" of the registration statement
prepared or certified by the accountants within the meaning of Sections 7 and
11 of the Securities Act of 1933.
16
P A R T I I
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Securities and Exchange Commission
Filing Fee......................... $ 172,414
Rating Agency Fees................... 155,000
Fees and Expenses of Indenture
Trustees........................... 7,000
Printing Expenses.................... 30,000
Accountants' Fees and Expenses....... 30,000
Legal Fees and Expenses.............. 75,000
Blue Sky Fees and Expenses........... 11,000
Miscellaneous Expenses............... 14,586
---------
Total............................ $ 495,000
=========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law and the Restated
Certificate of Incorporation and the By-laws of the Company contain provisions
covering indemnification of corporate directors and officers against certain
liabilities and expenses incurred as a result of proceedings involving such
persons in their capacities as directors and officers, including proceedings
under the Securities Act and the Exchange Act.
The Company has entered into indemnity contracts and provides indemnity
insurance pursuant to which officers and directors are indemnified and insured
against liability or loss under certain circumstances which may include
liability or related loss under the Securities Act and the Exchange Act.
Any agents, dealers or underwriters, who execute the agreements filed as
Exhibit 1 to this registration statement, will agree to indemnify the
Company's directors and its officers against certain liabilities which might
arise under the Securities Act or Exchange Act from information furnished to
the Company by or on behalf of any such indemnifying party.
ITEM 16. EXHIBITS
EXHIBIT NO.
-----------
1 -- Form of Underwriting Agreement.
4(a)* -- Form of Senior Debt Indenture between Sysco
Corporation and First Union National Bank of North
Carolina, as trustee.
4(b)* -- Form of Subordinated Debt Indenture between Sysco
Corporation and , as trustee.
5 -- Opinion of Arnall Golden & Gregory, counsel to Sysco
Corporation, and opinion of Baker & Botts, L.L.P. as
to the validity of the Debt Securities to be issued.
12* -- Computation of Ratio of Earnings to Fixed Charges.
24(a) -- Consent of Arthur Andersen LLP.
24(b) -- Consents of Arnall Golden & Gregory, counsel to Sysco
Corporation, and Baker & Botts, L.L.P., are contained
in the opinion filed as Exhibit 5.
26(a)* -- Form T-1 Statement of Eligibility of Trustee under the
Trust Indenture Act of 1939 of First Union National
Bank of North Carolina (bound separately).
28* -- Letter from Arthur Andersen LLP regarding unaudited
interim financial information.
----------------
* Previously filed.
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(a)(1) to file during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) to include any prospectus required by section 10(a)(3) of the
Securities Act.
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(ii) to reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement; and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) 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 Exchange Act that are
incorporated by reference in the registration statement;
(2) that, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof;
(3) to remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination
of the offering; and
(b) that, for purposes of determining any liability under the Securities
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 the registration statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant, the registrant has been advised that in the opinion of the
Securities and Exchange Commission, such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of
any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
The undersigned registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act of 1939, as amended,
in accordance with the rules and regulations prescribed by the Securities and
Exchange Commission under Section 305(b)(2) of the Trust Indenture Act of
1939, as amended.
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SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
THE REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT
MEETS ALL OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED,
THEREUNTO DULY AUTHORIZED, IN THE CITY OF HOUSTON, AND THE STATE OF TEXAS, ON
THIS 14TH DAY OF JUNE, 1995.
SYSCO CORPORATION
By: /s/ BILL M. LINDIG
BILL M. LINDIG
PRESIDENT
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
SIGNATURE TITLE DATE
--------- ----- -----
/s/BILL M. LINDIG President, Chief Executive Officer and June 14, 1995
BILL M. LINDIG Director (principal executive officer)
/s/JOHN K. STUBBLEFIELD, JR. Senior Vice President and Chief June 14, 1995
JOHN K. STUBBLEFIELD, JR. Financial Officer (principal financial
and accounting officer)
/s/JOHN F. WOODHOUSE* Chairman of the Board of Directors June 14, 1995
JOHN F. WOODHOUSE
/s/JOHN W. ANDERSON* Director June 14, 1995
JOHN W. ANDERSON
/s/JOHN F. BAUGH* Director June 14, 1995
JOHN F. BAUGH
/s/COLIN G. CAMPBELL* Director June 14, 1995
COLIN G. CAMPBELL
/s/CHARLES H. COTROS* Director June 14, 1995
CHARLES H. COTROS
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/s/FRANK A. GODCHAUX III* Director June 14, 1995
FRANK A. GODCHAUX III
/s/JONATHAN GOLDEN* Director June 14, 1995
JONATHAN GOLDEN
/s/DONALD J. KELLER* Director June 14, 1995
DONALD J. KELLER
/s/RICHARD G. MERRILL* Director June 14, 1995
RICHARD G. MERRILL
/s/DONALD H. PEGLER, JR.* Director June 14, 1995
DONALD H. PEGLER, JR.
/s/FRANK H. RICHARDSON* Director June 14, 1995
FRANK H. RICHARDSON
/s/PHYLLIS S. SEWELL* Director June 14, 1995
PHYLLIS S. SEWELL
/s/ARTHUR J. SWENKA* Director June 14, 1995
ARTHUR J. SWENKA
/s/THOMAS B. WALKER, JR.* Director June 14, 1995
THOMAS B. WALKER, JR.
*By: /s/BILL M. LINDIG June 14, 1995
BILL M. LINDIG
ATTORNEY-IN-FACT
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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 14, 1995
REGISTRATION NO. 033-60023
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
-----------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------
SYSCO CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
------------------------
EXHIBITS
EXHIBIT INDEX
EXHIBIT
NO. DESCRIPTION
------- -----------
1 -- Form of Underwriting Agreement.
4(a)* -- Form of Senior Debt Indenture between Sysco Corporation and
First Union National Bank of North Carolina, as trustee.
4(b)* -- Form of Subordinated Debt Indenture between Sysco Corporation
and , as trustee.
5 -- Opinion of Arnall Golden & Gregory, counsel to Sysco
Corporation, and opinion of Baker & Botts, L.L.P. as to the
validity of the Debt Securities to be issued.
12* -- Computation of Ratio of Earnings to Fixed Charges.
24(a) -- Consent of Arthur Andersen LLP.
24(b) -- Consents of Arnall Golden & Gregory, counsel to Sysco
Corporation, and Baker & Botts, L.L.P., are contained in the
opinion filed as Exhibit 5.
26(a)* -- Form T-1 Statement of Eligibility of Trustee under the Trust
Indenture Act of 1939 of First Union National Bank of North
Carolina (bound separately).
28* -- Letter from Arthur Andersen LLP regarding unaudited interim
financial information.
- ---------
* Previously filed.