Registration No. 33-______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
--------------------
ARVIN INDUSTRIES, INC.
(Exact name of Registrant as specified in its charter)
Indiana 35-0550190
(State or other jurisdiction of (IRS Employer Identification
incorporation or organization) No.)
One Noblitt Plaza
Box 3000
Columbus, Indiana 47202-3000
(812) 379-3000
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
---------------
Ronald R. Snyder
Vice President, General Counsel and Secretary
Arvin Industries, Inc.
One Noblitt Plaza
Box 3000
Columbus, Indiana 47202-3000
(812) 379-3000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
---------------
Copies to:
Frederick L. Hartmann Paul W. Theiss
Schiff Hardin & Waite Mayer, Brown & Platt
7200 Sears Tower 190 South LaSalle Street
Chicago, Illinois 60606 Chicago, Illinois 60603
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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 as determined in light of market conditions and other
factors.
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/
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CALCULATION OF REGISTRATION FEE
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Title of Each Class of Proposed Maximum Proposed Maximum
Securities to be Amount to be Offering Price Per Aggregate Offering Amount of
Registered Registered <F1> Unit <F2> Price <F2> Registration Fee
------------------------- -------------- ----------------- ------------------ ---------------
Debt Securities <F4> . .
Preferred Shares, without
par value <F5><F6> . . .
Depositary Shares <F6> . <F3> <F3> <F3>
Common Shares, $2.50 par
value, and related
Preferred Share Purchase
Rights <F7> . . . . . . .
Warrants <F8> . . . . . .
Total . . . . . . . . . . $225,000,000<F1> _____ $225,000,000 <F2> $77,586.75
==============================================================
<F1> In no event will the approximate initial offering price of all securities issued from time to time pursuant
to this Registration Statement exceed $225,000,000 (or the equivalent, based on the applicable exchange rate
at the time of sale, thereof in other currency or currency units if any securities are denominated in, or
sold for, other than U.S. dollars). Any securities registered hereunder may be sold separately or as units
with other securities registered hereunder.
<F2> Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o).
<F3> Not applicable pursuant to Form S-3, General Instruction II.D.
<F4> Subject to note (1), there are being registered hereunder an indeterminate principal amount of Debt
Securities. See "Description of Debt Securities." If any Debt Securities are being issued at an original
issue discount, then the offering price shall be in such greater principal amount as shall result in an
approximate initial offering price not to exceed $225,000,000, less the amount of any securities previously
issued hereunder. There are also being registered hereunder an indeterminate number of Debt Securities as
shall be issuable upon conversion of subordinated Debt Securities or Preferred Shares registered hereby.
<F5> Subject to note (1), there are being registered hereunder an indeterminate number of Preferred Shares as may
be sold, from time to time, by the Registrant. See "Description of Capital Shares -- Preferred Shares."
There are also being registered hereunder an indeterminate number of Preferred Shares as shall be issuable
upon conversion of subordinated Debt Securities or Preferred Shares registered hereby.
<F6> Subject to note (1), there are being registered hereunder an indeterminate number of Depositary Shares to be
evidenced by Depositary Receipts issued pursuant to a Deposit Agreement. See "Description of Depositary
Shares." In the event the Registrant elects to offer to the public fractional interests in Preferred Shares
registered hereunder, the Preferred Shares may be issued to the depositary under a Deposit Agreement, and
Depositary Receipts will be issued by the depositary.
<F7> Subject to note (1), there are being registered hereunder an indeterminate number of Common Shares and
related Preferred Share Purchase Rights as may be sold, from time to time, by the Registrant. Prior to the
occurrence of certain events, the Rights will not be exercisable or evidenced separately from the Common
Shares. See "Description of Capital Shares -- Common Shares" and "-- Preferred Share Purchase Rights."
There are also being registered hereunder an indeterminate number of Common Shares and related Preferred
Share Purchase Rights as shall be issuable upon conversion of subordinated Debt Securities or Preferred
Shares registered hereby.
<F8> Subject to note (1), there are being registered hereunder an indeterminate amount and number of Warrants,
representing rights to purchase Preferred Shares, Common Shares or Debt Securities registered hereby.
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 THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON
SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY
DETERMINE.
[END OF COVER PAGE]
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT
BE SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE
REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT
CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR
SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH SUCH
OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR
QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED APRIL 11, 1994
PROSPECTUS
[LOGO] ARVIN INDUSTRIES, INC.
$225,000,000
DEBT SECURITIES
PREFERRED SHARES
DEPOSITARY SHARES
COMMON SHARES
WARRANTS
___________________________________
Arvin Industries, Inc. ("Arvin" or the "Company") may offer from
time to time, together or separately, its (i) unsecured debt
securities ("Debt Securities"), which may be either senior ("Senior
Debt Securities") or subordinated ("Subordinated Debt Securities"),
consisting of debentures, notes or other unsecured evidences of
indebtedness in one or more series; (ii) Preferred Shares, no par
value, in one or more series ("Preferred Shares"), which may be issued
in the form of Depositary Shares evidenced by Depositary Receipts;
(iii) Common Shares, $2.50 par value ("Common Shares"), and related
preferred share purchase rights; and (iv) warrants ("Warrants") to
purchase securities designated by the Company at the time of the
offering of any Warrants. Subordinated Debt Securities and Preferred
Shares may be convertible into other securities of the Company. The
Debt Securities, Preferred Shares, Depositary Shares, Common Shares
and Warrants are collectively referred to as the "Securities."
The Securities offered pursuant to this Prospectus may be issued
in one or more series or issuances at an aggregate initial offering
price not to exceed $225,000,000 (or its equivalent in foreign
currency or currency units) in amounts, at prices and on terms to be
determined at or prior to the time of sale and set forth in one or
more supplements to this Prospectus (each, a "Prospectus Supplement").
Certain specific terms of the particular Securities in respect of
which this Prospectus is being delivered will be set forth in the
accompanying Prospectus Supplement, including, where applicable, the
initial public offering price of the Securities, the net proceeds
thereof to the Company, any listing of such Securities on a securities
exchange and any other special terms. The Prospectus Supplement will
set forth with regard to Securities being offered, without limitation,
the following: (i) in the case of Debt Securities (and, if Warrants
to purchase Debt Securities are being offered, similar information
with respect to the Debt Securities that may be purchased upon
exercise of each such Warrant), the specific designation, aggregate
principal amount, whether such Debt Securities will be Senior Debt
Securities or Subordinated Debt Securities, authorized denominations,
maturity, any interest rate (which may be fixed or variable) or method
of calculation of interest and date of payment of any interest, any
premium, the place or places where principal of, premium, if any, and
any interest on such Debt Securities will be payable, any terms of
redemption at the option of the Company or the holder, any terms for
sinking fund payments, any currency or currency units of denomination
and payment, if other than U.S. dollars, and any other terms
(including in the case of Subordinated Debt Securities, any terms for
conversion into other securities of the Company) in connection with
the offering and sale of the Debt Securities in respect of which this
Prospectus is delivered; (ii) in the case of Preferred Shares (and, if
Warrants to purchase Preferred Shares are being offered, similar
information with respect to the Preferred Shares that may be purchased
upon exercise of each such Warrant), the specific designation and
stated value, number of shares, any dividend (including the method of
calculating payment of dividends and the timing thereof), redemption,
liquidation, voting and other rights, any sinking fund provisions, any
terms for conversion into other securities of the Company and any
other terms, including whether the Company has elected to offer the
Preferred Shares in the form of Depositary Shares and, if so, the
terms of such Depositary Shares, including the fraction of a Preferred
Share represented by each Depositary Share; (iii) in the case of
Common Shares, the number of shares and the terms of offering thereof;
and (iv) in the case of Warrants, the designation and number, the
Securities to be purchased upon exercise, the exercise price, manner
of exercise, detachability, expiration date and any other terms in
connection with the offering, sale and exercise of the Warrants. If
so specified in the applicable Prospectus Supplement, Securities may
be issued in whole or in part in the form of one or more temporary or
global securities.
The Prospectus Supplement will also contain information, where
applicable, about certain United States federal income tax
considerations relating to the Securities covered by the Prospectus
Supplement.
The Common Shares are listed on the New York Stock Exchange and
the Chicago Stock Exchange under the symbol "ARV." Any Common Shares
sold pursuant to a Prospectus Supplement will be approved for listing
on such exchanges, upon notice of issuance.
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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 the Securities to or through underwriters or
dealers and may also sell Securities directly to other purchasers or
through agents. See "Plan of Distribution." The Prospectus
Supplement will set forth the names of any underwriters, dealers or
agents involved in the sale of the Securities in respect of which this
Prospectus is being delivered and any applicable fee, commission and
discount arrangements with them. See "Plan of Distribution" for a
description of any indemnification arrangements between the Company
and any underwriters, dealers or agents.
This Prospectus may not be used to consummate sales of Securities
unless accompanied by a Prospectus Supplement.
The date of this Prospectus is ____________________, 1994.
[END OF PROSPECTUS COVER PAGE]
IN CONNECTION WITH ANY UNDERWRITTEN OFFERING, THE UNDERWRITERS OF
SUCH OFFERING MAY OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR
MAINTAIN THE MARKET PRICE OF THE SECURITIES OFFERED HEREBY AT A LEVEL
ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH
STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
AVAILABLE INFORMATION
Arvin has filed with the Securities and Exchange Commission (the
"Commission") a Registration Statement on Form S-3 (including any
amendments thereto, the "Registration Statement") under the Securities
Act of 1933, as amended (the "Securities Act") with respect to the
Securities offered hereby. This Prospectus does not contain all of
the information set forth in the Registration Statement and the
exhibits and schedules thereto, certain portions of which have been
omitted pursuant to the rules of the Commission. Statements made in
this Prospectus as to the contents of any contract, agreement or other
document are not necessarily complete. With respect to each such
contract, agreement or other document filed or incorporated by
reference as an exhibit to the Registration Statement, reference is
made to such exhibit for a more complete description of the matter
involved, and each such statement is qualified in its entirety by such
reference.
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
in accordance therewith files reports, proxy materials and other
information with the Commission. Such reports, proxy materials and
other information filed by the Company can be inspected and copied at
the public reference facilities maintained by the Commission at Room
1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the
following Regional Offices of the Commission: Chicago Regional
Office, 500 West Madison Street, Chicago, Illinois 60661 and New York
Regional Office, 13th Floor, Seven World Trade Center, New York, New
York 10048. 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 reports, proxy
materials and other information may also be inspected and copied at
the offices of the New York Stock Exchange, 20 Broad Street, New York,
New York 10005 and the Chicago Stock Exchange, 440 South LaSalle
Street, Chicago, Illinois 60604.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission
pursuant to the Exchange Act are hereby incorporated by reference into
this Prospectus:
1. The Company's Annual Report on Form 10-K for the fiscal
year ended January 2, 1994;
2. The Company's Current Report on Form 8-K dated February
3, 1994; and
3. The description of the Common Shares contained in the
Company's Registration Statement on Form 8-A, filed June 19,
1950, supplementing its Registration Statement on Form 10, filed
October 25, 1939, and the description of the associated Preferred
Share Purchase Rights contained in the Company's Registration
Statement on Form 8-A, dated June 10, 1986, as amended February
28, 1989, in each case as filed under Section 12 of the Exchange
Act.
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
Securities made hereby shall be deemed to be incorporated by reference
into 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 shall be deemed to be
modified or superseded for purposes of this Prospectus to the extent
that a statement contained herein or in any other subsequently filed
document that also is or is deemed to be incorporated by reference
herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
THE COMPANY WILL PROVIDE WITHOUT CHARGE TO EACH PERSON TO WHOM A
COPY OF THIS PROSPECTUS IS DELIVERED, UPON THE WRITTEN OR ORAL REQUEST
OF SUCH PERSON, A COPY OF ANY OR ALL DOCUMENTS INCORPORATED BY
REFERENCE INTO THIS PROSPECTUS (NOT INCLUDING EXHIBITS TO SUCH
DOCUMENTS UNLESS SUCH EXHIBITS ARE SPECIFICALLY INCORPORATED BY
REFERENCE INTO SUCH DOCUMENTS). REQUESTS FOR SUCH COPIES SHOULD BE
DIRECTED TO SHAREHOLDER RELATIONS, ARVIN INDUSTRIES, INC., ONE NOBLITT
PLAZA, BOX 3000, COLUMBUS, INDIANA 47202-3000; TELEPHONE (812)
379-3000.
THE COMPANY
Arvin is a diversified international manufacturing company
supplying automotive parts and a variety of other products and
services through ten operating entities in the U.S. and numerous other
parts of the world. Since its founding in 1919, Arvin has grown
through internal development, acquisitions and joint ventures. In
recent years, Arvin's strategy has been to strengthen its automotive
parts businesses by achieving a balance between sales to both original
equipment manufacturers and replacement parts suppliers on a global
basis.
The Company was incorporated in Indiana in 1921. Its principal
executive offices are located at One Noblitt Plaza, Box 3000,
Columbus, Indiana 47202-3000, and its telephone number is (812)
379-3000. Arvin's Common Shares are listed on the New York Stock
Exchange and the Chicago Stock Exchange under the symbol "ARV."
USE OF PROCEEDS
Unless otherwise specified in the applicable Prospectus
Supplement, the net proceeds from the sale of the Securities will be
used for general corporate purposes, which may include the repayment
of indebtedness, working capital expenditures and investments in, or
acquisitions of, businesses and assets. Pending application of such
net proceeds for specific purposes, such proceeds may be invested in
short-term or marketable securities. Specific allocations of proceeds
to a particular purpose that have been made at the date of any
Prospectus Supplement will be described therein.
RATIOS OF EARNINGS TO FIXED CHARGES AND
EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED DIVIDENDS
Fiscal Year Ended
Dec. 31, Dec. 30, Dec. 29, Jan. 3, Jan. 2,
1989 1990 1991 1993 1994
________ ________ ________ _______ _______
Ratio of Earnings to Fixed
Charges . . . . . . . . . . . 1.75 2.07 1.73 2.26 1.85
Ratio of Earnings to Combined
Fixed Charges and Preferred
Dividends . . . . . . . . . . 1.33 1.56 1.32 1.78 1.85
For purposes of calculating the ratios of earnings to fixed
charges and earnings to combined fixed charges and preferred
dividends, "earnings" consist of earnings from continuing operations
before income taxes, adjusted for the portion of fixed charges
deducted from such earnings, for undistributed earnings of less-than-
fifty-percent-owned affiliates and for minority interests in income of
majority-owned subsidiaries that have fixed charges. "Fixed charges"
consist of interest on all indebtedness (including capital lease
obligations), amortization of debt expense and the percentage of
rental expense on operating leases deemed representative of the
interest factor. "Preferred dividends" represent dividends paid on
all Preferred Shares outstanding during the periods. Such Preferred
Shares were comprised of the Company's Remarketed Preferred Shares,
which were redeemed during the third quarter of 1989, and the
Company's $3.75 Convertible Exchangeable Preferred Shares, which were
issued in July 1989 and were redeemable by the holder in certain
remote circumstances. All outstanding Convertible Exchangeable
Preferred Shares were redeemed by the Company in September 1992.
Preferred dividends used to compute the ratio of earnings to combined
fixed charges and preferred dividends have been increased to an amount
representing the pre-tax earnings that would be required to cover
preferred dividend payments.
DESCRIPTION OF DEBT SECURITIES
The following description of the Debt Securities sets forth
certain general terms and provisions of the Debt Securities to which
any Prospectus Supplement may relate. The particular terms of the
Debt Securities offered by any Prospectus Supplement and the extent,
if any, to which such general provisions are not applicable will be
described in a Prospectus Supplement relating to such Debt Securities.
The Debt Securities will be general unsecured obligations of
Arvin and will constitute either senior debt securities or
subordinated debt securities. Those Debt Securities that will be
senior debt securities ("Senior Debt Securities") will be issued under
an Indenture dated as of July 3, 1990 (the "Senior Indenture") between
the Company and Harris Trust and Savings Bank, as trustee under the
Senior Indenture. In the case of Debt Securities that will be
subordinated debt securities ("Subordinated Debt Securities"), the
Debt Securities will be issued under an Indenture dated as of ______,
1994 (the "Subordinated Indenture") to be entered into between Arvin
and NBD Bank, N.A., as trustee under the Subordinated Indenture. The
Senior Indenture and the Subordinated Indenture are sometimes referred
to individually as an "Indenture" and collectively as the
"Indentures." Copies of the Senior Indenture and the form of
Subordinated Indenture have been filed as exhibits to the Registration
Statement. The trustees under the Senior Indenture and the
Subordinated Indenture are sometimes referred to collectively as the
"Trustees."
The following summaries of certain provisions of the Senior Debt
Securities, the Subordinated Debt Securities and the Indentures do not
purport to be complete and are qualified in their entirety by
reference to all the provisions of the Indenture applicable to a
particular series of Debt Securities, including the definitions
therein of certain terms. Wherever particular Sections, Articles or
defined terms of the Indentures are referred to, it is intended that
such Sections, Articles or defined terms shall be incorporated by
reference herein. Capitalized terms not otherwise defined herein
shall have the meanings given to them in the applicable Indenture.
PROVISIONS APPLICABLE TO BOTH SENIOR
AND SUBORDINATED DEBT SECURITIES
GENERAL
The Indentures do not limit the aggregate principal amount of
Debt Securities that can be issued thereunder and provide that Debt
Securities may be issued from time to time thereunder in one or more
series, each in an aggregate principal amount authorized by the
Company prior to issuance. The Indentures do not limit the amount of
other unsecured indebtedness or securities that may be issued by the
Company.
The holders of Debt Securities will not benefit from any covenant
or other provision that would afford such holders special protection
in the event of a highly leveraged transaction involving Arvin. At
the date of this Prospectus, the Company does not intend to include
any covenants or other provisions affording such protection in any
series of the Debt Securities. If the Company determines in the
future that it is desirable to include any such covenants or other
provisions in any series of Debt Securities, they will be described in
the Prospectus Supplement for that series. Certain other covenants
under the Senior Indenture are described below under "Provisions
Applicable Solely to Senior Debt Securities -- Certain Covenants."
Each Indenture provides that Debt Securities may be issued
thereunder by the Company from time to time upon satisfaction of
certain conditions precedent, including the delivery to the Trustee of
a resolution of the board of directors, or a committee thereof, of the
Company that fixes or provides for the establishment of terms of such
Debt Securities, including: (1) the specific designation of the Debt
Securities and the series of which such Debt Securities shall be a
part; (2) the aggregate principal amount and denominations of such
Debt Securities; (3) the date or dates on which such Debt Securities
will mature; (4) the rate or rates per annum (which may be fixed or
floating) at which such Debt Securities will bear interest, if any,
(5) the dates on which such interest, if any, will be payable, the
record dates with respect to such interest payment dates and the date
from which such interest, if any, will accrue; (6) the premium, if
any, and conditions thereof; (7) the provisions, if any, for
redemption of such Debt Securities prior to stated maturity at the
option of the Company, the redemption price and any remarketing
arrangements relating thereto; (8) the provisions, if any, for
repayment of such Debt Securities prior to stated maturity at the
option of the Holders thereof; (9) the place or places where the
principal, premium, if any, and interest on the Debt Securities will
be payable; (10) any currency or currency units of denomination and
payment, if other than U.S. dollars; (11) the ranking of the Debt
Securities as Senior or Subordinated; (12) in the case of Subordinated
Debt Securities, any terms for conversion into other securities of the
Company; (13) any additional information with respect to book-entry
procedures, if applicable; and (14) any other provisions permitted by
the applicable Indenture. Reference is made to the Prospectus
Supplement for the terms of the Debt Securities being offered hereby.
The Debt Securities will be issued in fully registered form
without coupons, unless provisions relating to bearer securities are
set forth in the Prospectus Supplement for the Debt Securities being
offered. No service charge will be made for any registration of
transfer of Debt Securities or exchange of Debt Securities, but the
Company may require payment of a sum sufficient to cover any tax or
other governmental charges that may be imposed in connection
therewith.
The provisions of each Indenture provide the Company with the
ability, in addition to the ability to issue Debt Securities with
terms different from those of Debt Securities previously issued, to
"reopen" a previous issue of a series of Debt Securities and issue
additional Debt Securities of such series.
Principal, premium, if any, and interest, if any, on Debt
Securities will be payable in the manner, at the places and subject to
the restrictions set forth in the applicable Indenture, the Debt
Securities and the Prospectus Supplement relating thereto, provided
that (unless otherwise provided in the applicable Prospectus
Supplement) payment of any interest may be made at the option of the
Company by check mailed to the Holders of registered Debt Securities
at their registered addresses.
Debt Securities may be presented for exchange or transfer in the
manner, at the places and subject to the restrictions set forth in the
applicable Indenture, the Debt Securities and the Prospectus
Supplement relating thereto.
CONSOLIDATION, MERGER AND SALE OF ASSETS
Arvin may not consolidate with, or sell, lease or convey all or
substantially all of its assets to, or merge with or into, any other
corporation, unless (i) if Arvin is not the continuing corporation,
the successor corporation shall be a corporation organized and
existing under the laws of the United States of America or a State
thereof; (ii) the successor corporation shall expressly assume by a
supplemental indenture, executed and delivered to the Trustee in form
satisfactory to the Trustee, the due and punctual payment of the
principal, premium, if any, and interest on, the Debt Securities,
according to their tenor and the due and punctual performance and
observance of all covenants and conditions of the applicable Indenture
to be performed by the Company; and (iii) the Company or such
successor corporation, as the case may be, shall not immediately after
such merger or consolidation, or such sale, lease or conveyance, be in
default in the performance of any such covenant or condition.
MODIFICATION AND WAIVER
Modification and amendment of either Indenture may be effected by
the Company and the Trustee with the consent of the Holders of not
less than a majority in aggregate principal amount of the Outstanding
Debt Securities of each series affected thereby, provided that no such
modification or amendment may, without the consent of the Holder of
each Outstanding Debt Security affected thereby, (a) change the Stated
Maturity of the principal of, or any installment of interest on, any
Debt Security or reduce the principal amount thereof or the rate of
interest thereon or any premium payable upon the redemption thereof,
or reduce the amount of the principal of an Original Issue Discount
Debt Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof, or change the currency in which
any Debt Security or any premium or the interest thereon is payable,
or impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of
redemption or repayment, on or after the Redemption Date or Repayment
Date), or, in the case of Subordinated Debt Securities, modify any
provision relating to their subordination in a manner adverse to the
holders thereof, or (b) reduce the percentage in principal amount of
the Outstanding Debt Securities of any series, the consent of whose
Holders is required for any such amendment, or the consent of whose
Holders is required for any waiver provided for in the Indenture, or
(c) modify any of the provisions set forth in this paragraph, except
to increase any such percentage or to provide that certain other
provisions of the Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Debt Security affected
thereby. Except with respect to such matters, the Holders of at least
a majority in principal amount of Outstanding Debt Securities of any
series may, with respect to such series, waive past defaults under the
applicable Indenture (other than a default in payment of principal,
premium, if any, or interest) and waive compliance by the Company with
certain provisions of the Indenture.
SATISFACTION AND DISCHARGE OF AN INDENTURE
If the Company deposits or causes to be deposited with the
Trustee cash or direct obligations of the United States of America or
obligations the payment of principal and interest on which is
guaranteed by the United States of America (and which are not callable
at will by the issuer thereof) as will together with the income to
accrue thereon, be sufficient to pay and discharge the entire
indebtedness on all Outstanding Debt Securities of any series when
due, and complies with certain other conditions, then, at the
direction of the Company, the Company shall be deemed to have paid and
discharged the entire Indebtedness with respect to such series of
Outstanding Debt Securities (except for certain surviving obligations
including, among other things, the rights of the Holders thereof to
receive from such deposits payment of principal, premium, if any, and
interest with respect to such Outstanding Debt Securities when such
payments are due).
If the Company deposits with the Trustee cash or securities as
described above and either (A) all Debt Securities theretofore
authenticated and delivered under the applicable Indenture have been
delivered for cancellation (other than (i) Debt Securities (or coupons
in the case of bearer securities) that have been destroyed, lost or
stolen and which have been paid or replaced, (ii) coupons pertaining
to bearer securities whose surrender is not required or has been
waived under certain circumstances and (iii) Debt Securities (or
coupons in the case of bearer securities) the payment for which has
been previously deposited in trust or segregated and held in trust by
the Company and thereafter repaid to the Company or discharged from
such trust) or (B) all such Debt Securities have become due and
payable or will become due and payable at their Stated Maturity within
one year or, if redeemable at the option of the Company, are to be
called for redemption within one year, and the Company complies with
certain other conditions, then, at the direction of the Company, such
Indenture shall cease to be of further effect, except as to certain
rights of transfer or exchange.
EVENTS OF DEFAULT
Each Indenture defines an Event of Default with respect to any
series of Debt Securities issued thereunder as being any one of the
following events: (i) default for 30 days in any payment of interest
on any Debt Security of such series; (ii) default in the payment of
principal of, or premium, if any, on, any Debt Security of such series
when due; (iii) default in the deposit of any sinking fund payment
with respect to any Debt Security of such series when due; (iv)
default, for 90 days after appropriate notice, in performance of any
other covenant or warranty in such Indenture (other than a covenant or
warranty included in such Indenture solely for the benefit of one or
more series of Debt Securities other than that series); (v) the
failure to pay principal of or interest on any other obligation for
borrowed money of the Company (including default under any other
series of Debt Securities and in the case of the Senior Debt
Securities, including default on any guaranty of an obligation for
borrowed money of a Restricted Subsidiary) beyond any period of grace
with respect thereto if (x) the aggregate principal amount of any such
obligation is in excess of $10,000,000 (or in the case of any such
obligation in which the amount payable upon acceleration is less than
the amount payable at stated maturity, the amount then payable upon
acceleration exceeds $10,000,000), (y) the default in such payment is
not being contested by the Company in and by appropriate proceedings,
and (z) the default in such payment has not been cured or waived prior
to the notice in writing to the Company as provided in such Indenture;
(vi) certain events of bankruptcy, insolvency or reorganization; or
(vii) any other Event of Default provided with respect to Debt
Securities of that series. In case an Event of Default specified in
(vi) above occurs, all unpaid principal of, premium, if any, and
accrued interest on Outstanding Debt Securities of any series shall
ipso facto become and shall be immediately due and payable without any
declaration or other act on the part of the applicable Trustee or any
Holder, and if any other Event of Default shall occur and be
continuing with respect to any series of Debt Securities, the Trustee
with respect thereto or the Holders of not less than 25% in aggregate
principal amount of the Outstanding Debt Securities of that series may
declare the principal of such series (or, as in the case of Original
Issue Discount Securities, such portion of the principal as may be
specified in the terms of that series) to be due and payable
immediately. However, at any time after such a declaration of
acceleration with respect to Debt Securities of any series has been
made, but before a judgment or decree based on such acceleration has
been obtained, the Holders of a majority in aggregate principal amount
of Outstanding Debt Securities of that series may, under certain
circumstances, rescind and annul such acceleration if all Events of
Default other than the non-payment of accelerated principal, with
respect to Debt Securities of that series, have been cured or waived
as provided in such Indenture.
Reference is made to the Prospectus Supplement relating to any
Debt Security that is an Original Issue Discount Security for the
particular provisions relating to acceleration of the Maturity of a
portion of the principal amount of such Original Issue Discount
Security upon the occurrence of an Event of Default and the
continuation thereof.
Each Indenture requires the Company to file annually with the
Trustee an Officer's Certificate as to the absence of certain defaults
under the terms of such Indenture. Each Indenture provides that the
Trustee thereof shall, within 90 days after the occurrence of a
default with respect to any such series for which there are Debt
Securities outstanding which is continuing, give to the Holders of
such Debt Securities notice of all uncured defaults known to it (the
term default to include the events specified above without grace
periods); provided that, except in the case of default in the payment
of principal, premium, if any, or interest on any of the Debt
Securities of any series or the payment of any sinking fund
installment on the Debt Securities of any series, the Trustee shall be
protected in withholding such notice if it in good faith determines
that the withholding of such notice is in the interest of the Holders
of Debt Securities.
Subject to the provisions of each Indenture relating to the
duties of the Trustee thereof in case an Event of Default shall occur
and be continuing, each Indenture provides that the Trustee shall be
under no obligation to exercise any of its rights or powers under such
Indenture at the request, order or direction of the Holders of the
Debt Securities unless such Holders shall have offered to the Trustee
reasonable indemnity. Subject to such provisions for indemnification
and other rights of the Trustee, each Indenture provides that the
Holders of a majority in aggregate principal amount of the Outstanding
Debt Securities of any series affected shall have the right to 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 Debt Securities of such series.
No Holder of any Debt Security of any series will have any right
to institute any proceeding with respect to such Indenture or for any
remedy thereunder unless (i) such Holder shall have previously given
to the Trustee thereof written notice of a continuing Event of Default
with respect to Debt Securities of that series, (ii) the Holders of at
least 25% in aggregate principal amount of the Outstanding Debt
Securities of that series shall have made written request to the
Trustee to institute such proceeding as Trustee, (iii) such Holder or
Holders shall have offered to the Trustee reasonable indemnity, (iv)
the Trustee shall have failed to institute such proceeding within 60
days, and (v) the Trustee shall not have received from the Holders of
a majority in aggregate principal amount of the Outstanding Debt
Securities of that series a direction inconsistent with such request.
However, the Holder of any Debt Security will have an absolute right
to receive payment of the principal, premium, if any, and interest on
such Debt Security on or after the due dates expressed in such Debt
Security and to institute suit for the enforcement of any such
payment.
BOOK-ENTRY DEBT SECURITIES
Debt Securities of a series may be issued in whole or in part in
the form of one or more global securities ("Global Securities") that
will be deposited with, or on behalf of, a depository identified in
the Prospectus Supplement relating to such series. Payments of
principal, premium, if any, and interest, if any, on Debt Securities
of such series represented by a Global Security will be made to the
Depository.
The Company anticipates that any Global Securities will be
deposited with, or on behalf of, The Depository Trust Company ("DTC"),
New York, New York, that such Global Securities will be registered in
the name of DTC's nominee, and that the following provisions will
apply to the depository arrangements with respect to any such Global
Securities. Additional or differing terms of the depository
arrangement relating to Debt Securities of any series issued in the
form of Global Securities will be described in the related Prospectus
Supplement.
So long as DTC or its nominee is the registered owner of a Global
Security, DTC or its nominee, as the case may be, will be considered
the sole holder of the Debt Securities represented by such Global
Security for all purposes under the applicable Indenture. Except as
described below, owners of beneficial interests in a Global Security
will not be entitled to have Debt Securities represented by such
Global Security registered in their names, will not receive or be
entitled to receive physical delivery of Debt Securities in
certificated form and will not be considered the record owners or
holders of Debt Securities under the applicable Indenture. The laws
of some states require that certain purchasers of securities take
physical delivery of such securities in certificated form;
accordingly, such laws may limit the transferability of beneficial
interests in a Global Security.
If DTC is at any time unwilling or unable to continue as
depository with respect to any Debt Securities that are represented by
a Global Security and a successor depository is not appointed by the
Company within 60 days, the Company will issue individual Debt
Securities in certificated form in exchange for the Global Securities.
In addition, the Company may at any time determine not to have any
Debt Securities of one or more series represented by Global Securities
and, in such event, will issue individual Debt Securities of such
series in certificated form in exchange for the relevant Global
Securities. In any such instance, an owner of a beneficial interest
in a Global Security will be entitled to physical delivery of
individual Debt Securities in certificated form equal in principal
amount to such beneficial interest and to have such Debt Securities in
certificated form registered in its name.
The following information concerning DTC and DTC's book-entry
system has been obtained from sources (including DTC) that the Company
believes to be reliable, but the Company takes no responsibility for
the accuracy thereof.
Any Debt Securities for which DTC will act as securities
depository will be issued as fully registered securities
registered in the name of Cede & Co. (DTC's partnership nominee).
One fully registered Debt Security certificate will be issued
with respect to up to $150 million of principal amount of the
Debt Securities of a series, and an additional certificate will
be issued with respect to any remaining principal amount of such
series.
DTC is a limited-purpose trust company organized under the
New York Banking Law, a "banking organization" within the meaning
of the New York Banking Law, a member of the Federal Reserve
System, a "clearing corporation" within the meaning of the New
York Commercial Code, and a "clearing agency" registered pursuant
to the provisions of Section 17A of the Exchange Act. DTC holds
securities that its participants ("Participants") deposit with
DTC. DTC also facilitates the settlement among Participants of
securities transactions, such as transfers and pledges, in
deposited securities through electronic computerized book-entry
changes in Participants' accounts, thereby eliminating the need
for physical movement of securities certificates. Direct
Participants include securities brokers and dealers, banks, trust
companies, clearing corporations and certain other organizations
("Direct Participants"). DTC is owned by a number of its Direct
Participants and by the New York Stock Exchange, Inc., the
American Stock Exchange, Inc. and the National Association of
Securities Dealers, Inc. Access to the DTC system is also
available to others such as securities brokers and dealers, banks
and trust companies that clear through or maintain a custodial
relationship with a Direct Participant, either directly or
indirectly ("Indirect Participants"). The rules applicable to
DTC and its Participants are on file with the Commission.
Purchases of Debt Securities under the DTC system must be
made by or through Direct Participants, which will receive a
credit for the Debt Securities on DTC's records. The ownership
interest of each actual purchaser of each Debt Security
("Beneficial Owner") is in turn to be recorded on the
Participants' records. A Beneficial Owner will not receive
written confirmation from DTC of its purchase, but such
Beneficial Owner is expected to receive a written confirmation
providing details of the transaction, as well as periodic
statements of its holdings, from the Participant through which
such Beneficial Owner entered into the transaction. Transfers of
ownership interests in Debt Securities are to be accomplished by
entries made on the books of Participants acting on behalf of
Beneficial Owners. Beneficial Owners will not receive
certificates representing their ownership interests in Debt
Securities, except in the event that use of the book-entry system
for the Debt Securities is discontinued.
The deposit of the Debt Securities with DTC and their
registration in the name of Cede & Co. will effect no change in
beneficial ownership. DTC will have no knowledge of the actual
Beneficial Owners of the Debt Securities; DTC records will
reflect only the identity of the Direct Participants to whose
accounts Debt Securities are credited, which may or may not be
the Beneficial owners. The Participants will remain responsible
for keeping account of their holdings on behalf of their
customers.
Delivery of notices and other communications by DTC to
Direct Participants, by Direct Participants to Indirect
Participants and by Direct and Indirect Participants to
Beneficial Owners will be governed by arrangements among them,
subject to any statutory or regulatory requirements as may be in
effect from time to time.
Neither DTC nor Cede & Co. will consent or vote with respect
to the Debt Securities. Under its usual procedures, DTC mails a
proxy (an "Omnibus Proxy") to the Company as soon as possible
after the record date. The Omnibus Proxy assigns Cede & Co.'s
consenting or voting rights to those Direct Participants to whose
accounts the Debt Securities are credited on the record date
(identified on a list attached to the Omnibus Proxy).
Principal, premium and interest payments on the Debt
Securities will be made to DTC. DTC's practice is to credit
Direct Participants' accounts on the payable date in accordance
with their respective holdings as shown on DTC's records unless
DTC has reason to believe that it will not receive payment on the
payable date. Payments by Participants to Beneficial Owners will
be governed by standing instructions and customary practices, as
is the case with securities held for the accounts of customers in
bearer form or registered in "street name," and will be the
responsibility of such Participant and not of DTC, the Trustee or
any Paying Agent or the Company, subject to any statutory or
regulatory requirements as may be in effect from time to time.
Payment of principal and interest to DTC is the responsibility of
the Company or the Trustee or any Paying Agent, disbursement of
such payments to Direct Participants will be the responsibility
of DTC and disbursement of such payments to the Beneficial Owners
will be the responsibility of Direct and Indirect Participants.
DTC may discontinue providing its services as securities
depository with respect to the Debt Securities at any time by
giving reasonable notice to the Company or the Paying Agent.
Under such circumstances, in the event that a successor
securities depository is not appointed, Debt Security
certificates are required to be printed and delivered.
The Company may decide to discontinue use of the system of
book-entry transfers through DTC (or a successor securities
depository). In that event, Debt Security certificates will be
printed and delivered.
Unless stated otherwise in the applicable Prospectus Supplement,
any underwriters, dealers or agents with respect to any Debt
Securities issued as Global Securities will be Direct Participants in
DTC.
None of the Company, any underwriter, dealer or agent, the
applicable Trustee or any Paying Agent will have any responsibility or
liability for any aspect of the records relating to or payments made
on account of beneficial interests in a Global Security, or for
maintaining, supervising or reviewing any records relating to such
beneficial interests.
INFORMATION CONCERNING THE TRUSTEES
Harris Trust and Savings Bank is the trustee under the Senior
Indenture, and NBD Bank, N.A. is the trustee under the Subordinated
Indenture. Each Trustee may also serve as warrant agent with respect
to any Debt Warrants to purchase underlying Debt Securities issued
under the Indenture with respect to which it acts as trustee (see
"Description of Warrants -- Debt Warrants"). The Company also
maintains banking relationships in the ordinary course of business
with each of the Trustees, and the Trustees participate, along with
several other banks, in certain credit facilities with Arvin and
certain of its subsidiaries. The Trustee for the Senior Indenture is,
as of the date of this Prospectus, trustee with respect to the
Company's 6 7/8% Notes due February 15, 2001 and its 9 1/8% Sinking
Fund Debentures due March 1, 2017. As of the date of this Prospectus,
the Trustee for the Senior Indenture also is trustee with respect to
$75,000,000 aggregate principal amount of the Company's Medium Term
Notes issued under the Senior Indenture and $38,000,000 aggregate
principal amount of Medium Term Notes of Arvin Overseas Finance B.V.,
an indirect wholly owned subsidiary of Arvin. As of the date of this
Prospectus, Arvin has outstanding $150,000,000 aggregate principal
amount of its debt securities issued under the Senior Indenture.
GOVERNING LAW
The Indentures are governed, and the Debt Securities will be
governed, by the laws of the State of New York.
PROVISIONS APPLICABLE SOLELY TO SENIOR DEBT SECURITIES
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 COVENANTS
The Senior Indenture contains certain covenants, including those
described below with respect to the incurrence of Secured Debt by
Arvin and its Restricted Subsidiaries, Sale and Leaseback Transactions
on the part of Arvin and its Restricted Subsidiaries, and the transfer
of Principal Facilities to Unrestricted Subsidiaries. Certain of the
terms used in these covenants are defined below under "Certain
Definitions." These covenants do not, however, focus on the amount of
debt incurred in any transaction and do not afford protection to
holders of the Debt Securities in the event of a highly leveraged
transaction that is not in violation of the covenants.
The Senior Indenture provides that so long as the Debt Securities
issued pursuant to such Indenture are outstanding, Arvin will not, and
will not cause or permit a Restricted Subsidiary to, create, incur,
assume or guarantee any Secured Debt or create any Security Interest
securing any indebtedness existing on the date of such Indenture that
would constitute Secured Debt if it were secured by a Security
Interest in a Principal Facility unless the Senior Debt Securities
will be secured equally and ratably (subject to applicable priorities
of payment) by the Security Interest securing such Secured Debt or
indebtedness, except that Arvin and its Restricted Subsidiaries may
create, incur, assume or guarantee certain Secured Debt without so
securing the Senior Debt Securities. Among such permitted Secured
Debt is indebtedness secured by (i) certain Security Interests to
secure payment of the cost of acquisition, construction, development
or improvement of property; (ii) Security Interests on property at the
time of acquisition assumed by Arvin or a Restricted Subsidiary, or on
the property or on the outstanding shares or indebtedness of a
corporation or firm at the time it becomes a Restricted Subsidiary or
is merged into or consolidated with Arvin or a Restricted Subsidiary,
or on properties of a corporation or firm acquired by Arvin or a
Restricted Subsidiary as an entirety or substantially as an entirety;
(iii) Security Interests arising from conditional sales agreements or
title retention agreements with respect to property acquired by Arvin
or any Restricted Subsidiary; (iv) Security Interests securing
indebtedness of a Restricted Subsidiary owing to Arvin or to another
Restricted Subsidiary; (v) mechanics' and other statutory liens
arising in the ordinary course of business (including construction of
facilities) in respect of obligations that are not due or that are
being contested in good faith; (vi) liens for taxes, assessments or
governmental charges not yet due or for taxes, assessments or
governmental charges that are being contested in good faith; (vii)
Security Interests (including judgment liens) arising in connection
with legal proceedings so long as such proceedings are being contested
in good faith and, in case of judgment liens, execution thereon is
stayed; (viii) certain landlords' liens on fixtures; (ix) Security
Interests to secure partial, progress, advance or other payments or
indebtedness incurred for the purpose of financing construction on or
improvement of property subject to such Security Interests; and (x)
certain Security Interests in favor, or made at the request, of
governmental bodies. Additionally, permitted Secured Debt includes
(with certain limitations) any extension, renewal or refunding, in
whole or in part, of any Secured Debt permitted at the time of the
original incurrence thereof. In addition to the foregoing, Arvin and
its Restricted Subsidiaries may incur Secured Debt, without equally
and ratably securing the Senior Debt Securities, if the sum of (a) the
amount of Secured Debt entered into after the date of the Senior
Indenture and otherwise prohibited by the Senior Indenture plus (b)
the aggregate value of Sale and Leaseback Transactions entered into
after the date of the Senior Indenture and otherwise prohibited by the
Senior Indenture does not exceed ten percent of Consolidated Net
Tangible Assets.
The Senior Indenture provides that so long as Debt Securities
issued pursuant to such Indenture are outstanding Arvin will not, and
will not permit any Restricted Subsidiary to, enter into any Sale and
Leaseback Transaction unless (a) Arvin or such Restricted Subsidiary
would be entitled to incur Secured Debt permitted by the Indenture
only by reason of the provision described in the last sentence of the
preceding paragraph equal in amount to the net proceeds of the
property sold or transferred or to be sold or transferred pursuant to
such Sale and Leaseback Transaction and secured by a Security Interest
on the property to be leased without equally and ratably securing the
Notes or (b) Arvin or a Restricted Subsidiary shall apply within 180
days after the effective date of such Sale and Leaseback Transaction,
an amount equal to such net proceeds (x) to the acquisition,
construction, development or improvement of properties, facilities or
equipment which are, or upon such acquisition, construction,
development or improvement will be, a Principal Facility or Facilities
or a part thereof or (y) to the redemption of Senior Debt Securities
or (z) to the repayment of Senior Funded Debt of Arvin or of any
Restricted Subsidiary (other than the Senior Funded Debt owed to any
Restricted Subsidiary), or in part to such acquisition, construction,
development or improvement and in part to such redemption and/or
repayment. In lieu of applying an amount equal to such net proceeds
to such redemption Arvin may, within 180 days after such sale or
transfer, deliver to the Trustee Senior Debt Securities (other than
Senior Debt Securities made the basis of a reduction in a mandatory
sinking fund payment) for cancellation and thereby reduce the amount
to be applied to the redemption of the Senior Debt Securities by an
amount equivalent to the aggregate principal amount of the Senior Debt
Securities so delivered.
The Senior Indenture provides that so long as Debt Securities
issued pursuant to such Indenture are outstanding, Arvin will not, and
will not cause or permit any Restricted Subsidiary to, transfer any
Principal Facility to any Unrestricted Subsidiary unless it shall
apply within 180 days of the effective date of such transaction an
amount equal to the fair value of such Principal Facility at the time
of such transfer (i) to the acquisition, construction, development or
improvement of properties, facilities or equipment which are, or upon
such acquisition, construction, development or improvement will be, a
Principal Facility or Facilities or a part thereof or (ii) to the
redemption of the Senior Debt Securities or (iii) to the repayment of
Senior Funded Debt of Arvin or any Restricted Subsidiary (other than
Senior Funded Debt owed to any Restricted Subsidiary), or in part to
such acquisition, construction, development or improvement and in part
to such redemption and/or repayment. In lieu of applying all or any
part of such amount to such redemption, Arvin may, within 180 days of
such transfer, deliver to the Trustee Senior Debt Securities (other
than Senior Debt Securities made the basis of a reduction in a
mandatory sinking fund payment) for cancellation and thereby reduce
the amount to be applied to the redemption of the Senior Debt
Securities by an amount equivalent to the aggregate principal amount
of the Senior Debt Securities so delivered.
CERTAIN DEFINITIONS
The following terms are defined substantially as follows in
Section 101 of the Senior Indenture and are used herein as so defined.
"Consolidated Net Tangible Assets" means, in each case, with
respect to Arvin (a) the total amount of assets (less applicable
reserves and other properly deductible items) after deducting
therefrom (i) all liabilities and liability items, except for
indebtedness payable by its terms more than one year from the date of
incurrence thereof (or renewable or extendable at the option of the
obligor for a period ending more than one year after such date of
incurrence), capitalized rent, capital stock (including redeemable
preferred stock) and surplus, surplus reserves and deferred income
taxes and credits and other non-current liabilities, and (ii) all
goodwill, trade names, trademarks, patents, unamortized debt discount,
unamortized expenses incurred in the issuance of debt, and other like
intangibles which, in each case, under generally accepted accounting
principles in effect on July 3, 1990, the date of the Senior
Indenture, would be included on a consolidated balance sheet of Arvin
and its Restricted Subsidiaries, less (b) loans, advances, equity
investments and guarantees (other than accounts receivable arising
from the sale of merchandise in the ordinary course of business) at
the time outstanding that were made or incurred by Arvin and its
Restricted Subsidiaries to, in or for Unrestricted Subsidiaries or to,
in or for corporations while they were Restricted Subsidiaries and
which at the time of computation are Unrestricted Subsidiaries.
"Principal Facility" means any manufacturing plant, warehouse,
office building or parcel of real property (including fixtures but
excluding leases and other contract rights which might otherwise be
deemed real property) owned by Arvin, or any Restricted Subsidiary,
whether owned on the date of the Senior Indenture or thereafter,
provided each such plant, warehouse, office building or parcel of real
property has a gross book value (without deduction for any
depreciation reserves) at the date as of which the determination is
being made of in excess of three percent of the Consolidated Net
Tangible Assets, other than any such plant, warehouse, office building
or parcel of real property or portion thereof which, in the opinion of
the Board of Directors (evidenced by a Board Resolution), is not of
material importance to the business conducted by Arvin and its
Subsidiaries taken as a whole.
"Restricted Subsidiary" means (a) any Subsidiary other than an
Unrestricted Subsidiary and (b) any Subsidiary that was an
Unrestricted Subsidiary but which, subsequent to the date of the
applicable Indenture, is designated by Arvin (evidenced by a Board
Resolution) to be a Restricted Subsidiary; provided, however, that
Arvin may not designate any such Subsidiary to be a Restricted
Subsidiary if Arvin would thereby breach any covenant or agreement
contained in the Senior Indenture (on the assumption that any
transaction to which such Subsidiary was a party at the time of such
designation and which would have given rise to Secured Debt or
constituted a Sale and Leaseback Transaction at the time it was
entered into had such Subsidiary then been a Restricted Subsidiary was
entered into at the time of such designation).
"Sale and Leaseback Transaction" means any sale or transfer made
by Arvin or one or more Restricted Subsidiaries (except a sale or
transfer made to Arvin or one or more Restricted Subsidiaries) of any
Principal Facility that (in the case of a Principal Facility which is
a manufacturing plant, warehouse or office building) has been in
operation, use or commercial production (exclusive of test and start-
up periods) by Arvin or any Restricted Subsidiary for more than 180
days prior to such sale or transfer, or that (in the case of a
Principal Facility that is a parcel of real property other than a
manufacturing plant, warehouse or office building) has been owned by
Arvin or any Restricted Subsidiary for more than 180 days prior to
such sale or transfer, if such sale or transfer is made with the
intention of leasing, or as part of an arrangement involving the lease
of such Principal Facility to Arvin or a Restricted Subsidiary (except
a lease for a period not exceeding 36 months made with the intention
that the use of the leased Principal Facility by Arvin or such
Restricted Subsidiary will be discontinued on or before the expiration
of such period). Any Secured Debt permitted under the Senior
Indenture will not be deemed to create or be defined to be a Sale and
Leaseback Transaction.
"Secured Debt" means any indebtedness for money borrowed by, or
evidenced by a note or other similar instrument of, Arvin or a
Restricted Subsidiary, and any other indebtedness of Arvin or a
Restricted Subsidiary on which, by the terms of such indebtedness,
interest is paid or payable, including obligations evidenced or
secured by leases, installment sales agreements or other instruments
in connection with private activity bonds which are qualified bonds
under Section 141 of the Internal Revenue Code of 1986 (other than
indebtedness owed by a Restricted Subsidiary to Arvin, by a Restricted
Subsidiary to another Restricted Subsidiary or by Arvin to a
Restricted Subsidiary), which in any such case is secured by (a) a
Security Interest in any Principal Facility, or (b) a Security
Interest in any shares of stock owned directly or indirectly by Arvin
in a Restricted Subsidiary or in indebtedness for money borrowed by a
Restricted Subsidiary from Arvin or another Restricted Subsidiary.
The securing in the foregoing manner of any previously unsecured debt
shall be deemed to be the creation of Secured Debt at the time such
security is given. The amount of Secured Debt at any time outstanding
shall be the aggregate amount then owing thereon by Arvin and its
Restricted Subsidiaries.
"Senior Funded Debt" means any obligation of Arvin or any
Restricted Subsidiary which constituted funded debt as of the date of
its creation and that, in the case of such funded debt of Arvin, is
not subordinate and junior in right of payment to the prior payment of
the Senior Debt Securities. As used herein "funded debt" shall mean
any obligation payable by its terms more than one year from the date
of incurrence thereof (or renewable or extendable at the option of the
obligor for a period ending more than one year after such date of
incurrence), which under generally accepted accounting principles
should be shown on the balance sheet as a liability.
"Subsidiary" means any corporation of which at the time of
determination Arvin and/or one or more Subsidiaries owns or controls
directly or indirectly more than 50 percent of the shares of Voting
Stock.
"Unrestricted Subsidiary" means (a) any Subsidiary acquired or
organized after the date of the Senior Indenture, provided, however,
that such Subsidiary is not a successor, directly or indirectly, to,
and does not directly or indirectly own any equity interest in, any
Restricted Subsidiary, (b) any Subsidiary the principal business and
assets of which are located outside the United States of America
(including its territories and possessions) or Canada or both, (c) any
Subsidiary the principal business of which consists of financing the
acquisition or disposition of machinery, equipment, inventory,
accounts receivable and other real, personal and intangible property
by Persons including Arvin or a Subsidiary, (d) any Subsidiary the
principal business of which is owning, leasing, dealing in or
developing real property for residential or office building purposes,
and (e) any Subsidiary substantially all the assets of which consist
of stock or other securities of an Unrestricted Subsidiary or
Unrestricted Subsidiaries of the character described in clauses (a)
through (d) of this paragraph, unless and until, in each of the cases
specified in this paragraph, any such designation shall have been
designated to be a Restricted Subsidiary pursuant to clause (b) of the
definition of "Restricted Subsidiary."
PROVISIONS APPLICABLE SOLELY TO SUBORDINATED DEBT SECURITIES
Subordinated Debt Securities will be issued under the
Subordinated Indenture and will rank pari passu with certain other
subordinated debt of the Company that may be outstanding from time to
time and will rank junior to all Senior Indebtedness of the Company
(including any Senior Debt Securities) that may be outstanding from
time to time. The particular terms of the Subordinated Debt
Securities offered by any Prospectus Supplement, including the terms
of subordination and the definition of Senior Indebtedness, may be
modified from those set forth in the following general provisions, as
and to the extent described in the Prospectus Supplement.
SUBORDINATION
The payment of the principal of (and premium, if any) and
interest on the Subordinated Debt Securities is expressly
subordinated, to the extent and in the manner set forth in the
Subordinated Indenture (with any changes therein effected by the terms
of the particular Subordinated Debt Securities indicated in the
Prospectus Supplement), in right of payment to the prior payment in
full of all Senior Indebtedness of the Company.
In the event of any dissolution or winding up, or total or
partial liquidation or reorganization of the Company, whether in
bankruptcy, reorganization, insolvency, receivership or similar
proceeding, the holders of Senior Indebtedness will be entitled to
receive payment in full of all amounts due or to become due on or in
respect of all Senior Indebtedness before the Holders of the
Subordinated Debt Securities are entitled to receive any payment on
the Subordinated Debt Securities, including principal (or premium, if
any) or interest.
Unless otherwise indicated in the Prospectus Supplement, no
payment in respect of the Subordinated Debt Securities shall be made
if, at the time of such payment, there exists a default in payment
(beyond any applicable grace period) on all or any portion of any
Senior Indebtedness, and such default shall not have been cured or
waived in writing or the benefits of such subordination in the
Subordinated Indenture shall not have been waived in writing by or on
behalf of the holders of such Senior Indebtedness.
If, notwithstanding the foregoing, the Trustee or the Holder of
any of the Subordinated Debt Securities receives any payment or
distribution of any kind before all Senior Indebtedness is paid in
full or payment thereof provided for, such payment or distribution
shall be applied to the payment of all Senior Indebtedness remaining
unpaid, to the extent necessary to pay all Senior Indebtedness in
full, after giving effect to any concurrent payment or distribution to
or for the holders of Senior Indebtedness.
The term "Senior Indebtedness" is defined in the Subordinated
Indenture as Indebtedness (which includes any Senior Debt Securities),
either outstanding as of the date of the Subordinated Indenture or
subsequently issued, that by its terms is not subordinated in right of
payment to any unsecured Indebtedness of the Company or is pari passu
with subordinated Indebtedness of the Company.
The term "Indebtedness," as applied to any Person, is defined in
the Subordinated Indenture as all indebtedness, whether or not
represented by bonds, debentures, notes or other securities, created
or assumed by such Person for the repayment of money borrowed, and
obligations, computed in accordance with generally accepted accounting
principles, as lessee under leases that should be, in accordance with
generally accepted accounting principles, treated as capital leases.
All Indebtedness secured by a lien upon property owned by Arvin or any
Subsidiary and upon which Indebtedness such Person customarily pays
interest, although such Person has not assumed or become liable for
the payment of such Indebtedness, shall be deemed to be Indebtedness
of such Person. All Indebtedness of others guaranteed as to payment
of principal by such Person or in effect guaranteed by such Person
through a contingent agreement to purchase such Indebtedness shall
also be deemed to be indebtedness of such Person.
If Subordinated Debt Securities are issued under the Subordinated
Indenture, the aggregate principal amount of Senior Indebtedness
outstanding as of a recent date will be set forth in the related
Prospectus Supplement. The Subordinated Indenture does not restrict
the amount of Senior Indebtedness that Arvin may incur.
CONVERSION
The terms on which Subordinated Debt Securities of any series are
convertible into Common Shares or other securities of the Company will
be set forth in the Prospectus Supplement relating thereto. Except as
otherwise indicated in the Prospectus Supplement, any right to convert
Subordinated Debt Securities called for redemption will terminate at
the close of business on the redemption date. In the case of
Subordinated Debt Securities convertible into Common Shares, the
initial conversion price will be subject to appropriate adjustment in
certain events, including: (i) a dividend or distribution on the
Common Shares in Common Shares; (ii) a subdivision or combination of
the Common Shares; (iii) an issuance to all holders of Common Shares
of certain rights (other than the Rights, as defined below under "--
Preferred Share Purchase Rights") or warrants entitling them (for a
period expiring within 45 days after the relevant record date) to
subscribe for or purchase Common Shares at less than the current
market price; and (iv) a distribution on the Common Shares of
evidences of indebtedness of the Company or assets (other than cash
dividends or distributions from retained earnings) or rights (other
than Rights) or warrants to subscribe for or purchase any of its
securities (other than those referred to above).
In addition, except as otherwise indicated in the Prospectus
Supplement, in any of the following events: (i) the reclassification
or change of outstanding Common Shares (other than certain changes in
par value, or as a result of a subdivision or combination); (ii) any
consolidation, merger or combination of the Company as a result of
which holders of Common Shares shall be entitled to receive stock,
securities or other assets with respect to or in exchange for such
Common Shares; or (iii) any sale or conveyance of the assets of the
Company as, or substantially as, an entirety to any other entity as a
result of which holders of Common Shares shall be entitled to receive
stock, securities or other assets with respect to or in exchange for
such Common Shares; then, in any such event, the Holders of
Subordinated Debt Securities that are convertible into Common Shares
shall have the right to convert such Subordinated Debt Securities into
the kind and amount of shares of stock and other securities or assets
receivable upon such event by a holder of the number of Common Shares
issuable upon conversion of such Subordinated Debt Securities
immediately prior to such event.
No adjustment of the conversion price will be required to be made
in any case until cumulative adjustments amount to at least one
percent of the current conversion price. The Company reserves the
right to make such reductions in the conversion price, in addition to
those required in the foregoing provisions, as the Company in its
discretion shall determine to be advisable in order that certain
stock-related distributions hereafter made by the Company to its
shareholders will not be taxable. Each Common Share issued upon
conversion will, in certain circumstances and subject to certain terms
and conditions set forth in the Rights Agreement, include the
associated Rights. See "-- Preferred Share Purchase Rights."
Fractional Common Shares will not be issued upon conversion of
Subordinated Debt Securities that are convertible into Common Shares,
but, in lieu thereof, the Company will pay a cash adjustment based
upon the market price of the Common Shares.
Except as otherwise indicated in the Prospectus Supplement,
Subordinated Debt Securities surrendered for conversion during the
period from the close of business on any Regular Record Date next
preceding any Interest Payment Date to the opening of business on such
Interest Payment Date (except the Securities of any series called for
redemption on a redemption date during such period) must be
accompanied by payment of an amount equal to the interest thereon
which the registered Holder is to receive. In the case of any
Subordinated Debt Security which has been converted after any Regular
Record Date but on or before the next Interest Payment Date (except
Securities of any series whose Maturity is prior to such Interest
Payment Date), interest whose Stated Maturity is on such Interest
Payment Date will be payable on such Interest Payment Date
notwithstanding such conversion, and such interest shall be paid to
the Holder of such Security on such Regular Record Date. Except as
described above, no interest on converted Securities will be payable
by the Company on any Interest Payment Date subsequent to the date of
conversion. No other payment or adjustment for interest or dividends
is to be made upon conversion.
The conversion price for any Subordinated Debt Securities that
are convertible into securities of the Company other than Common
Shares will be subject to such adjustment as may be set forth in the
related Prospectus Supplement.
DESCRIPTION OF CAPITAL SHARES
GENERAL
Under the Company's Restated Articles of Incorporation (the
"Articles of Incorporation") the Company is authorized to issue
50,000,000 Common Shares, par value $2.50 per share, 22,095,003 of
which were issued and outstanding as of January 2, 1994, and 8,978,058
preferred shares, without par value (the "Preferred Shares"), none of
which were outstanding as of January 2, 1994, which may be issued at
any time by the Board of Directors in such series with such terms as
it may fix in resolutions providing for the issuance thereof. The
number of authorized Preferred Shares includes 500,000 authorized
Series C Junior Participating Preferred Shares (the "Series C
Preferred Shares") issuable under the Rights Agreement (as described
below), none of which were outstanding as of January 2, 1994. The
number of authorized Series C Preferred Shares may be increased from
time to time by resolution of the Board of Directors. See "--
Preferred Share Purchase Rights." The Company may issue the remainder
of the Preferred Shares in one or more series.
COMMON SHARES
Subject to the prior dividend rights of the Preferred Shares,
holders of the Common Shares are entitled to receive dividends and
other distributions, when and as declared by the Board of Directors of
the Company. Certain of the long-term debt obligations of the Company
contain covenants that may indirectly restrict the payment of
dividends on shares of its capital stock, although none materially
limits the Company's ability to pay dividends at the date of this
Prospectus. Any such material limitations will be described in a
Prospectus Supplement relating to Common Shares.
Holders of Common Shares are entitled to one vote for each share
held, and except as required by the Indiana Business Corporation Law
(the "IBCL") or as may be otherwise specifically provided in an
amendment to the Articles of Incorporation, vote together with any
Preferred Shares having general voting rights as a single class.
After creditors and the prior rights of any Preferred Shares have
been satisfied upon any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Company, the holders
of the Common Shares are entitled to share ratably in the remaining
assets of the Company.
The Common Shares have no conversion privileges or preemptive
rights and, except as described below, are not subject to redemption
at the option of the Company. The Articles of Incorporation, the IBCL
and, from time-to-time, various loan agreements to which the Company
is or may become a party may restrict the Company's ability to redeem
or repurchase its own shares in other situations.
The Common Shares are listed on the New York Stock Exchange and
the Chicago Stock Exchange. The transfer agent and registrar of the
Common Shares is Harris Trust and Savings Bank, Chicago, Illinois.
PROVISIONS WITH POSSIBLE ANTI-TAKEOVER EFFECTS
The Company's By-Laws currently provide for the classification of
the Board of Directors into three classes. The Articles of
Incorporation limit the number of directors that may be elected to not
less than 12 or more than 17 (exclusive of such number of Directors as
may be elected by any class of shares of the Company other than the
Common Shares on account of specified dividend arrearages in
accordance with the Articles of Incorporation), permit removal of
directors only for cause and only by the affirmative vote of two-
thirds of the outstanding voting shares, establish the power to make,
alter, amend or repeal the By-Laws exclusively in the Board of
Directors and require that any merger, dissolution or other
significant restructuring of the Company be approved by 80% of the
directors or by 80% of the shares outstanding and entitled to vote
thereon (which shareholder vote is also required to amend these
provisions). The By-Laws also provide that amendments thereof require
an affirmative vote of two-thirds of the directors then in office.
The Articles of Incorporation provide that the By-Laws may contain
provisions requiring the disclosure to the Company of the names of
beneficial owners of Common Shares and imposing sanctions in the event
of nondisclosure (such as prohibiting voting by, withholding dividends
to, and redeeming the Common Shares held by, the non-disclosing record
holder). The Company's By-Laws do not currently contain such
provisions.
In addition, the Articles of Incorporation provide that if any
person who is the beneficial owner of more than 50% of the Company's
outstanding Common Shares acquires any additional shares pursuant to a
tender offer or if any person or entity becomes the beneficial owner
of more than 50% of the Company's outstanding Common Shares in a
tender offer for such shares, not approved by a majority of the Board
of Directors who are unaffiliated with the person or entity making the
tender offer, then all holders of Common Shares (and holders of
rights, options, warrants and securities then exercisable or
convertible into Common Shares), other than the acquiring person, are
entitled for a limited period to have the Company repurchase any or
all of their shares at the "repurchase price." The "repurchase price"
is the greater of (a) the highest per share price paid by the person
or entity making the tender offer within the prior eighteen months
(plus aggregate earnings per Common Share for the preceding four
quarters less cash dividends paid on Common Shares during those four
quarters), or (b) the shareholder equity per Common Share. These
provisions of the Articles of Incorporation can be amended by only an
80% shareholder vote, subject to certain other limitations. The
Company's obligation to repurchase shares is limited by the IBCL and
could be limited by the terms and provisions of outstanding Preferred
Shares or loan or other agreements to which the Company might be a
party. See also "-- Preferred Share Purchase Rights."
Chapter 42 of the IBCL eliminates the voting rights of certain
shares ("control shares") held by persons ("acquiring persons") who
acquire shares giving them one-fifth, one-third or a majority of the
voting power of certain corporations, including the Company. Control
shares acquired in a control share acquisition retain the same voting
rights as were accorded the shares before the control share
acquisition only to the extent granted by resolutions approved by the
disinterested shareholders. If shareholders approve the voting rights
of control shares and a shareholder has acquired control shares with a
majority or more of the voting power, all shareholders of the
corporation are entitled to exercise statutory dissenters' rights and
to demand the value of their shares in cash from the corporation. If
voting rights are not accorded to the control shares, the corporation
has the right to redeem them. In addition, if authorized in a
corporation's articles of incorporation or by-laws, the corporation
may for a period of time redeem the shares that caused a person to
become an acquiring person at their fair value unless the acquiring
person provides certain information to the corporation. The Company's
By-Laws authorize such a redemption. The provisions of Chapter 42 do
not apply to acquisitions of voting power pursuant to a merger or
share exchange agreement to which the corporation is a party.
Chapter 43 of the IBCL imposes certain restrictions on the
ability of an "interested shareholder," which includes a beneficial
owner of at least 10% of the outstanding voting shares, of a "resident
domestic corporation" (such as the Company) to engage in a "business
combination," as defined in the statute, with the resident domestic
corporation unless certain requirements are met (including a waiting
period of five years after the shareholder becomes an interested
shareholder unless the corporation's board of directors approved the
acquisition of 10% or more of the voting shares or the business
combination, prior to the share acquisition date). Following the
five-year period, a business combination may be effected with an
interested shareholder only if (a) the business combination is
approved by the corporation's shareholders, excluding the interested
shareholder and any of its affiliates or associates, or (b) the
consideration to be received by shareholders in the business
combination meets certain fairness criteria set forth in Chapter 43.
Chapter 43 broadly defines the term "business combination" to include
mergers, sales or leases of assets, transfers of shares of the
corporation, proposals for liquidation and the receipt by an
interested shareholder of any financial assistance or tax advantage
from the corporation, except proportionately as a shareholder of the
corporation.
The overall effect of the above provisions may be to discourage,
or render more difficult, a merger, tender offer, proxy contest, the
assumption of control of the Company by a holder of a large block of
the Company's shares or other person, or the removal of incumbent
management, even if such actions may be beneficial to the Company's
shareholders generally.
PREFERRED SHARE PURCHASE RIGHTS
Each outstanding Common Share includes one Right (individually a
"Right" and collectively the "Rights") to purchase one one-hundredth
of a Series C Preferred Share, which series currently consists of
500,000 Preferred Shares, all of which have been reserved for issuance
upon exercise of the Rights. The terms and conditions of the Rights
are governed by a Rights Agreement dated as of May 29, 1986, as
amended by an amendment dated as of February 23, 1989 (the "Rights
Agreement"), between the Company and Harris Trust and Savings Bank.
The description of the Rights contained herein is qualified in its
entirety by reference to the Rights Agreement which is filed as part
of the Company's Current Report on Form 8-K dated June 16, 1986 and
the amendment thereto which is filed with the Company's Current Report
on Form 8-K dated February 23, 1989 and incorporated by reference
herein.
Currently, the Rights are not exercisable, certificates
representing Rights have not been issued and the Rights automatically
trade with the Common Shares. However, ten days after a person or
group either acquires beneficial ownership of 20% or more of the
outstanding Common Shares (such person or group being called an
"Acquiring Person") or makes an offer to acquire 20% or more of the
outstanding Common Shares, the Rights become exercisable, certificates
representing the Rights will be issued as soon as practicable
thereafter and the Rights will begin to trade independently from the
Common Shares. At no time will the Rights have any voting power.
When the Rights become exercisable, a holder thereof will become
entitled to buy one one-hundredth of a newly-issued Series C Preferred
Share for each Right at an exercise price of $90, subject to certain
anti-dilution adjustments. Each Series C Preferred Share will be
entitled to one vote per share, voting together with the Common Shares
and to certain other voting rights. See "Preferred Shares." Holders
of Series C Preferred Shares also have special rights to participate
in the election of two additional directors in the event of certain
dividend arrearages. Each Series C Preferred Share, if and when
issued upon the exercise of a Right, will be entitled to a minimum
preferential quarterly dividend at the rate of $25 per share, but
subject to certain adjustments will be entitled to an aggregate
dividend of 100 times the dividend declared per Common Share in the
preceding quarter. The holders of the Series C Preferred Shares will
receive a preferred liquidation payment of $100 per share, but will be
entitled to receive an aggregate liquidation payment equal to 100
times the payment made per Common Share.
In the event that any person or group becomes an Acquiring Person
other than through a cash tender offer for all outstanding Common
Shares in which such person increases its beneficial ownership from
below 20% to at least 80% of the outstanding Common Shares or in the
event a transaction occurs that increases the Acquiring Person's
proportionate ownership of the Common Shares, each Right (other than
those held by an Acquiring Person) will become exercisable, at the
current exercise price of the Right, for that number of Common Shares
having, at the time of such event, a market value of two times the
exercise price of the Right. Furthermore, if following the
acquisition by a person or group of 20% or more of the outstanding
Common Shares, the Company is involved in a merger or other business
combination transaction or the Company sells or transfers assets or
earnings power aggregating more than 50% of the assets or earning
power of the Company, each Right will become exercisable, at the
current exercise price of the Right, for that number of shares of
common stock of the acquiring company having, at the time of such
event, a market value of two times the exercise price of each Right.
The Rights are subject to redemption by the Board of Directors
for $.10 per Right (subject to adjustment) until a person or group
becomes an Acquiring Person. Any redemption is effective at such
time, on such basis and with such conditions as the Board of Directors
in its sole discretion establishes. The Rights expire on June 13,
1996, unless earlier redeemed.
The purchase price payable, and the number of Series C Preferred
Shares or other securities or property issuable upon exercise of the
Rights, are subject to adjustment from time to time to prevent
dilution under certain circumstances.
So long as the Rights are attached to the Common Shares, the
Company will issue one Right with each new Common Share so that all
Common Shares issued will have attached Rights. The Company will also
issue one Right with each new Common Share (a) issuable upon
conversion of any convertible security issued prior to such time, if
any, that the Rights are no longer attached to the Common Shares and
(b) issued upon exercise of options to purchase the Common Shares
granted by the Company prior to such time, if any, that the Rights are
no longer attached to the Common Shares.
The Rights have certain anti-takeover effects. The Rights will
cause substantial dilution to a person who attempts to acquire the
Company without conditioning his offer on a substantial number of the
Rights being acquired. The Rights will also adversely affect a person
who desires to obtain control of the Company without acquiring at
least 80% ownership through a cash tender offer for all outstanding
Common Shares. The Rights will not affect a transaction approved by
the Board of Directors of the Company prior to the existence of an
Acquiring Person because the Rights can be redeemed.
PREFERRED SHARES
The following description of Preferred Shares sets forth certain
general terms and provisions of any series of Preferred Shares to
which any Prospectus Supplement may relate. The specific terms of a
particular series of Preferred Shares will be described in the
Prospectus Supplement relating to such series of Preferred Shares. If
so indicated in the related Prospectus Supplement, the terms of any
such series of Preferred Shares may differ from the terms set forth
below. The description of Preferred Shares set forth below and the
description of a particular series of Preferred Shares set forth in
the Prospectus Supplement relating thereto do not purport to be
complete and are qualified in their entirety by reference to the
Articles of Incorporation, and any amendments thereto relating to such
series of Preferred Shares, which are filed or incorporated by
reference as an exhibit to the Registration Statement of which this
Prospectus is a part.
Under the Articles of Incorporation the Board of Directors of the
Company is authorized to issue Preferred Shares in one or more series
and with rights, preferences, privileges and restrictions, including
dividend rights, voting rights, conversion rights, terms of redemption
and liquidation preferences, that may be fixed or designated by the
Board of Directors without any further vote or action by the Company's
stockholders.
The specific terms of a particular series of Preferred Shares
offered hereby will be described in the applicable Prospectus
Supplement, which will specify the terms of the Preferred Shares as
follows:
(a) the maximum number of shares to constitute the series
and the distinctive designations thereof;
(b) the annual dividend rate, if any, on shares of the
series and the date or dates from which dividends shall commence
to accrue or accumulate, and whether the dividends shall be
cumulative, and the dividend preference, if any, applicable to
the shares of the series;
(c) the price and the terms and conditions on which the
shares of the series may be redeemed, including the time during
which shares of the series may be redeemed, and any accumulated
dividends thereon that the holders of shares of the series shall
be entitled to receive upon the redemption thereof;
(d) the liquidation preference, if any, applicable to the
shares of the series;
(e) whether the shares of the series will be subject to the
operation of a retirement or sinking fund, and if so, the extent
and manner in which any such retirement or sinking fund shall be
applied to the purchase or redemption of the shares of the series
for retirement or for other corporate purposes, and the terms and
provisions relative to the operations of such retirement or
sinking fund;
(f) the terms and conditions, if any, on which the shares
of the series shall be convertible into, or exchangeable for,
shares of any other class or classes of capital stock of the
Company or any series of any other class or classes, or of any
other series of the same class, including the price or prices or
the rate or rates of conversion or exchange and the method, if
any, of adjusting the same, provided that shares of such series
may not be convertible into shares of a series or class that has
prior or superior rights and preferences as to dividends or
distribution of assets of the Company upon voluntary or
involuntary dissolution or winding up of the affairs of the
Company;
(g) the voting rights, if any, of the shares of the series;
(h) whether fractional interest in shares of the series
will be offered in the form of Depositary Shares as described
below under "Description of Depositary Shares;" and
(i) any or all other preferences and relative,
participating, optional, or other special rights, or
qualifications, limitations or restrictions thereof.
Any Prospectus Supplement that specifies the terms of Preferred Shares
will also describe any restriction on the repurchase or redemption of
shares by the Company while there is any arrearage in the payment of
dividends or, if applicable, sinking fund installments, or, if there
is no such restriction, will so state.
In addition to such voting rights as may be provided for in any
series of Preferred Shares established by the Board of Directors of
the Company, under the Articles of Incorporation, the holders of at
least two-thirds of the total number of outstanding Preferred Shares,
voting together as a single class, must approve any amendment to the
Articles of Incorporation which would authorize any class of shares,
or of securities convertible into shares, which would rank prior to
the then outstanding Preferred Shares as to payment of dividends, or
as to distribution of assets upon liquidation, dissolution or winding
up of the Company or any amendment to the Articles of Incorporation
which would change the designation, rights or preferences of such
outstanding Preferred Shares so as to affect them adversely. If any
such change would adversely affect any particular series of then
outstanding Preferred Shares, no change may be made without, in
addition, the approval of the holders of at least two-thirds of the
then outstanding shares of the particular series that would be so
affected, voting separately as a series. The Articles of
Incorporation also provide that additional Preferred Shares may not be
authorized and that a class of shares that would rank on parity with
outstanding Preferred Shares as to assets or dividends may not be
authorized without the consent of the holders of at least a majority
of the total number of outstanding Preferred Shares, voting separately
as a class, without regard to series.
The holders of Preferred Shares also have the right, voting
separately as a class or series, to cast one vote per share upon each
question or matter in respect of which, under the IBCL, such holders
are entitled to vote by class or series.
In addition to any series of Preferred Shares that may be
described in the applicable Prospectus Supplement, the Articles of
Incorporation authorize 500,000 preferred shares designated Series C
Preferred Shares to be issued upon exercise of the Rights in
accordance with the Rights Agreement. See "Preferred Share Purchase
Rights" for a description of the Rights and the rights and preferences
of the Series C Preferred Shares.
DESCRIPTION OF DEPOSITARY SHARES
The descriptions set forth below and in any Prospectus Supplement
of certain provisions of any Deposit Agreement, Depositary Shares and
Depositary Receipts (each as defined below) do not purport to be
complete and are subject to and qualified in their entirety by
reference to the forms of Deposit Agreement and Depositary Receipts
relating to each series of Preferred Shares, which are filed or
incorporated by reference as exhibits to the Registration Statement.
GENERAL
The Company may, at its option, elect to offer fractional
interests in Preferred Shares, rather than whole Preferred Shares. In
that event, the Company expects to provide for the issuance by a
Depositary of receipts for depositary shares ("Depositary Shares"),
each of which will represent a fractional interest in Preferred Shares
of a particular series, as set forth in the Prospectus Supplement
relating to the Depositary Shares and the particular series of
Preferred Shares.
The shares of any series of Preferred Shares underlying the
Depositary Shares will be deposited under a separate Deposit Agreement
(a "Deposit Agreement") between the Company, a bank or trust company
selected by the Company having its principal office in the United
States and having a combined capital and surplus of at least
$50,000,000 (a "Depositary") and the holders of the Depositary Shares.
The Prospectus Supplement relating to a series of Depositary Shares
will set forth the name and address of the Depositary. Subject to the
terms of the Deposit Agreement, each holder of Depositary Shares will
be entitled, in proportion to the applicable fractional interest in
the Preferred Shares underlying such Depositary Shares, to the rights
and preferences of the underlying Preferred Shares (including any
dividend, voting, redemption, conversion, exchange and liquidation
rights).
The Depositary Shares will be evidenced by depositary receipts
issued pursuant to the Deposit Agreement (the "Depositary Receipts").
Depositary Receipts will be distributed to those persons purchasing
the fractional interests in shares of the related series of Preferred
Shares in accordance with the terms of the offering described in the
related Prospectus Supplement.
DIVIDENDS AND OTHER DISTRIBUTIONS
Whenever the Depositary receives any cash dividend or other cash
distribution on the Preferred Shares, except cash received upon
redemption of any Preferred Shares, the Depositary will distribute all
such cash dividends or other cash distributions received to the record
holders of Depositary Receipts relating to such Preferred Shares in
proportion, as nearly as practicable, to the respective numbers of
such Depositary Shares evidenced by such Depositary Receipts, but
without attributing to any holder of Depositary Shares a fraction of
one cent. Any balance not so distributed shall be held by the
Depositary (without liability for interest thereon) and treated as a
part of the next sum received by the Depositary for distribution to
record holders of the Depositary Receipts.
In the event of a distribution on the Preferred Shares other than
in cash, the Depositary will distribute to the record holders of
Depositary Receipts entitled thereto such amounts of the property so
received in proportion, as nearly as practicable, to the respective
numbers of Depositary Shares evidenced by such receipts. If the
Depositary determines, after consultation with the Company, that such
distribution cannot be made proportionately among such holders or is
otherwise not feasible, the Depositary may, with the approval of the
Company, sell such property and distribute the net proceeds to such
holders.
The Deposit Agreement will also contain provisions relating to
the manner in which any subscription or similar rights offered by the
Company to holders of the Preferred Shares shall be made available to
the holders of Depositary Receipts.
REDEMPTION OF DEPOSITARY SHARES
If a series of the Preferred Shares underlying the Depositary
Shares is subject to redemption, the Depositary Shares will be
redeemed from the proceeds received by the Depositary from the
redemption, in whole or in part, of such Preferred Shares held by the
Depositary. The Depositary shall mail notice of redemption not less
than 30 nor more than 60 days prior to the date fixed for redemption
to the record holders of the Depositary Receipts to be so redeemed at
their respective addresses appearing in the Depositary's books. The
redemption price per Depositary Share being redeemed will be equal to
the applicable fraction of the redemption price per share payable with
respect to such of the Preferred Shares as are redeemed. Whenever the
Company redeems Preferred Shares held by the Depositary, the
Depositary will redeem as of the same redemption date the number of
Depositary Shares relating to the Preferred Shares so redeemed. If
less than all of the Depositary Shares are to be redeemed, the
Depositary Shares to be redeemed will be selected by lot or pro rata
as may be determined by the Company.
After the date fixed for redemption, the Depositary Shares so
called for redemption will no longer be deemed to be outstanding and
all rights (except the right to receive the redemption price) of the
holders of the Depositary Shares will cease and terminate.
VOTING THE PREFERRED SHARES
Upon receipt of notice of any meeting at which the holders of the
Preferred Shares are entitled to vote, the Depositary will mail the
information contained in such notice of meeting to the record holders
of the Depositary Receipts relating to such Preferred Shares. Upon
the written request of a holder of a Depositary Receipt on such record
date, the Depositary shall, to the extent practicable, vote or cause
to be voted the amount of Preferred Shares represented by such
holder's Depositary Shares in accordance with the instructions set
forth in such request. In the absence of specific instructions from
the holder of a Depositary Receipt, the Depositary will abstain from
voting to the extent of Preferred Shares represented by the Depositary
Shares evidenced by such Depositary Receipt.
AMENDMENT AND TERMINATION OF DEPOSITARY AGREEMENT
The form of Depositary Receipt and any provision of the Deposit
Agreement may at any time be amended by agreement between the Company
and the Depositary. However, any amendment which (i) materially and
adversely alters the rights of the existing holders of Depositary
Shares or (ii) would be materially and adversely inconsistent with the
rights granted to the holders of Preferred Shares will not be
effective unless such amendment has been approved by the holders of at
least a majority of the Depositary Shares then outstanding.
A Deposit Agreement may be terminated by the Company on not less
than 30 days' notice to the Depositary, in which case, upon surrender
of Depositary Receipts, the Depositary will distribute to the holders
thereof the whole number of Preferred Shares represented thereby. The
Deposit Agreement will terminate automatically if (i) all outstanding
Depositary Shares relating thereto have been redeemed or converted,
(ii) if applicable, each underlying Preferred Share has been converted
into or exchanged for Common Shares or other securities or (iii) there
has been a final distribution in respect of the underlying Preferred
Shares in connection with any liquidation, dissolution or winding up
of the Company and such distribution has been made to the holders of
the related Depositary Shares.
CHANGES OF DEPOSITARY
The Company will pay all transfer and other taxes and
governmental charges arising solely from the existence of the
depositary arrangements. The Company will pay charges of the
Depositary in connection with the initial deposit of the Preferred
Shares and any redemption of the Preferred Shares. Holders of
Depositary Shares will pay transfer and other taxes and governmental
charges and such other charges as are expressly provided in the
Deposit Agreement to be for their accounts.
The Depositary may resign at any time by notice to the Company,
and the Company may remove the Depositary at any time, any such
resignation or removal to take effect upon the appointment of a
successor Depositary and its acceptance of such appointment. Such
successor Depositary must be appointed within 60 days after the notice
of resignation or removal and must be a bank or trust company having
it principal office in the United States and having a combined capital
and surplus of at least $50,000,000. If a successor Depositary is not
appointed within 60 days, the resigning or removed Depositary may
petition a court to appoint a successor Depositary.
MISCELLANEOUS
The Depositary will forward to the holders of Depositary Receipts
all reports and notices from the Company which are delivered to the
Depositary and which the Company is required to furnish to the holders
of the Preferred Shares.
Neither the Depositary nor the Company will be liable if it is
prevented or delayed by law or any circumstances beyond its control in
performing its obligations under the Deposit Agreement. The
obligations of the Company and the Depositary under the Deposit
Agreement will be limited to performance in good faith of their duties
thereunder, and they will not be obligated to prosecute or defend any
legal proceeding in respect of any Depositary Shares or Preferred
Shares unless satisfactory indemnity is furnished. They may rely upon
written advice of counsel or accountants, or information provided by
persons believed to be competent and on documents believed to be
genuine.
DESCRIPTION OF WARRANTS
The Company may issue Warrants, including Warrants to purchase
Debt Securities ("Debt Warrants") and Warrants to purchase Common
Shares, Preferred Shares or Depositary Shares ("Equity Warrants").
Warrants may be issued independently of or together with any other
Securities and may be attached to or separate from such Securities.
Each series of Warrants will be issued under a separate Warrant
Agreement (each a "Warrant Agreement") to be entered into between the
Company and a Warrant Agent ("Warrant Agent"). The Warrant Agent will
act solely as an agent of the Company in connection with the Warrant
of such series and will not assume any obligation or relationship of
agency for or with holders or beneficial owners of Warrants. The
following sets forth certain general terms and provisions of the
Warrants offered hereby. Further terms of the Warrants and the
applicable Warrant Agreement will be set forth in the applicable
Prospectus Supplement.
DEBT WARRANTS
The applicable Prospectus Supplement will describe the terms of
any Debt Warrants, including the following:
(i) the title and aggregate number of such Debt Warrants;
(ii) the offering price of such Debt Warrants, if any;
(iii) whether such Debt Warrants are to be issued with
any Debt Securities and, if so, the title, aggregate principal
amount and terms of any such Debt Securities; the number of Debt
Warrants to be issued with each $1,000 principal amount of such
Debt Securities (or such other principal amount as is provided by
the Company); and the date, if any, on and after which such Debt
Warrants and such Debt Securities will be separately
transferable;
(iv) the title, aggregate principal amount, ranking and
terms (including any subordination and conversion provisions) of
the underlying Debt Securities that may be purchased upon
exercise of such Debt Warrants;
(v) the time or times at which, or period or periods during
which, such Debt Warrants may be exercised, the minimum or
maximum amount of Debt Warrants which may be exercised at any one
time and the final date on which such Debt Warrants may be
exercised;
(vi) the principal amount of Underlying Debt Securities that
may be purchased upon exercise of each Debt Warrant and the
price, or the manner of determining the price, at which such
principal amount may be purchased upon such exercise;
(vii) the terms of any right to redeem or call such Debt
Warrants; and
(viii) information with respect to book-entry procedures,
if any;
(ix) the currency or currency units in which the offering
price, if any, and the exercise price are payable;
(x) if applicable, a discussion of certain United States
federal income tax considerations;
(xi) any other terms of such Debt Warrants not inconsistent
with the provisions of the Debt Warrant Agreement.
EQUITY WARRANTS
The applicable Prospectus Supplement will describe the terms of
any Equity Warrants, including the following:
(i) the title and aggregate number of such Equity Warrants;
(ii) the offering price of such Equity Warrants, if any;
(iii) the designation and terms of any Preferred Shares
that are purchasable on exercise of such Equity Warrants or that
underlie Depositary Shares purchasable on such exercise;
(iv) if applicable, the designation and terms of the
Securities with which such Equity Warrants are issued and the
number of such Equity Warrants issued with each such Security;
(v) if applicable, the date from and after which such
Equity Warrants and any Securities issued therewith will be
separately transferrable;
(vi) the number of Common Shares, Preferred Shares or
Depositary Shares purchasable upon exercise of an Equity Warrant
and the price at which such shares may be purchased upon
exercise;
(vii) the time or times at which, or period or periods
during which, such Equity Warrants may be exercised and the final
date on which such Equity Warrants may be exercised, and the
terms of any right of the Company to accelerate such final date
upon the occurrence of certain events;
(viii) if applicable, the minimum or maximum amount of such
Equity Warrants which may be exercised at any one time;
(ix) the currency or currency units in which the offering
price, if, any, and the exercise price are payable;
(x) any applicable antidilution provisions of such Equity
Warrants;
(xi) if applicable, a discussion of certain United States
federal income tax considerations;
(xii) the redemption or call provisions, if any, applicable
to such Equity Warrants; and
(xiii) any additional terms of such Equity Warrants, not
inconsistent with the provisions of the Equity Warrant Agreement.
PLAN OF DISTRIBUTION
Arvin may sell the Securities: (i) through underwriters or
dealers; (ii) directly to a limited number of purchasers or to a
single purchaser; or (iii) through agents. The Prospectus Supplement
with respect to the Securities will set forth the terms of the
offering, the purchase price of the Securities and the proceeds to the
Company from such sale, any underwriters, dealers or agents, any
delayed delivery arrangements, any fees, underwriting discounts and
other items constituting underwriters' compensation, any initial
public offering price and any discounts or concessions allowed or
reallowed or paid to dealers. Any initial public offering price and
any discounts or concessions allowed or reallowed or paid to dealers
may be changed from time to time.
If underwriters are used in the sale, the Securities will be
acquired by the underwriters for their own account and may be resold
from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices
determined at the time of sale. The Securities may be offered to the
public either through underwriting syndicates represented by one or
more managing underwriters or directly by one or more firms acting as
underwriters. The underwriter or underwriters with respect to a
particular underwritten offering of Securities to be named in the
Prospectus Supplement relating to such offering or, if an underwriting
syndicate is used, the managing underwriter or underwriters will be
set forth on the cover of such Prospectus Supplement. Unless
otherwise set forth in the Prospectus Supplement relating thereto, the
obligations of the underwriters to purchase the Securities will be
subject to conditions precedent and the underwriters will be obligated
to purchase all the Securities offered by the Prospectus Supplement if
any are purchased.
If dealers are utilized in the sale of Securities in respect of
which this Prospectus is delivered, the Company will sell such
Securities to the dealers as principals. The dealers may then resell
such Securities to the public at varying prices to be determined by
such dealers at the time of resale. The names of the dealers and the
terms of the transaction will be set forth in the Prospectus
Supplement relating thereto.
The Securities may be sold directly by the Company or through
agents designated by the Company from time to time. Any agent
involved in the offer or sale of the Securities in respect to which
this Prospectus is delivered will be named, and any commissions
payable by Arvin to such agent will be set forth in the Prospectus
Supplement relating thereto. Unless otherwise indicated in the
Prospectus Supplement, any such agent will be acting on a best efforts
basis for the period of its appointment.
The Securities may be sold directly by the Company to
institutional investors or others, who may be deemed to be
underwriters within the meaning of the Securities Act with respect to
any resale thereof. The terms of any such sales will be described in
the Prospectus Supplement relating thereto.
If so indicated in the Prospectus Supplement, the Company will
authorize agents, underwriters or dealers to solicit offers from
certain types of institutions to purchase Securities from the Company
at the public offering price set forth in the Prospectus Supplement
pursuant to delayed delivery contracts providing for payment and
delivery on a specified date in the future. Such contracts will be
subject only to those conditions set forth in the Prospectus
Supplement, and the Prospectus Supplement will set forth the
commission payable for solicitation of such contracts.
Agents, dealers and underwriters may be entitled under agreements
entered into with the Company to indemnification by the Company
against certain civil liabilities, including liabilities under the
Securities Act, or to contribution with respect to payments which such
agents, dealers or underwriters may be required to make in respect
thereof. Agents, dealers and underwriters may be customers of, engage
in transactions with, or perform services for the Company in the
ordinary course of business.
Other than the Common Shares, which will be approved for listing
upon notice of issuance on the New York Stock Exchange and the Chicago
Stock Exchange, the Securities may or may not be listed on a national
securities exchange. No assurances can be given that there will be a
market for the Securities.
LEGAL OPINIONS
The validity of the Securities offered hereby will be passed upon
for the Company by Schiff Hardin & Waite, Chicago, Illinois, and,
unless otherwise specified in the Prospectus Supplement, for any
underwriters or agents by Mayer, Brown & Platt, Chicago, Illinois.
The opinions with respect to the Securities may be conditioned upon,
and subject to certain assumptions regarding, future action to be
taken by the Company and the applicable Trustee, depositary or Warrant
Agent in connection with the issuance and sale of particular
Securities, the specific terms of Securities and other matters that
may affect the validity of Securities but that cannot be ascertained
on the date of such opinions.
EXPERTS
The financial statements incorporated in this Prospectus by
reference to the Annual Report on Form 10-K for the year ended January
2, 1994, except as they relate to Space Industries International,
Inc., have been so incorporated in reliance on the report of Price
Waterhouse, independent accountants, and, insofar as they relate to
Space Industries International, Inc., KPMG Peat Marwick, independent
certified public accountants, whose report thereon is incorporated in
this Prospectus by reference to the Annual Report on Form 10-K for the
year ended January 2, 1994. Such financial statements have been so
incorporated in reliance on the reports of such independent
accountants given on the authority of such firms as experts in
auditing and accounting.
The report of KPMG Peat Marwick covering the January 2, 1994
financial statements of Space Industries International, Inc. contains
an explanatory paragraph that states that the consolidated balance
sheet as of January 2, 1994 includes $18,154,619 of capitalized costs
related to the Space Facility Technology. As described in Note 4 to
the Space Industries International, Inc. financial statements, the
recovery of these costs is dependent on the future success in selling
the Space Facility Technology or the Industrial Space Facility or the
related service, at profitable terms, or the sale of the engineering
designs of the Industrial Space Facility.
----------------------------------------------------------------
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO
GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE
CONTAINED OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS OR THE
ACCOMPANYING PROSPECTUS SUPPLEMENT IN CONNECTION WITH THE OFFER MADE
BY THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY
THE COMPANY OR ANY UNDERWRITERS OR DEALERS. NEITHER THE DELIVERY OF
THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY
CIRCUMSTANCE CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN
THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF. THIS PROSPECTUS
DOES NOT CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE IN ANY STATE IN
WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE
PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR
TO ANYONE TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
____________________
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
An itemized statement of the estimated amount of the expenses,
other than underwriting discounts and commissions, incurred and to be
incurred by the Company in connection with the issuance and
distribution of the Securities registered pursuant to this
registration statement is as follows:
Securities and Exchange Commission filing fee . . . . . . $ 77,586.75
Printing and engraving expenses . . . . . . . . . . . . . . 50,000.00
Accounting fees and expenses . . . . . . . . . . . . . . . 40,000.00
Legal fees and expenses . . . . . . . . . . . . . . . . . . 100,000.00
Trustee and agent fees and expenses . . . . . . . . . . . 10,000.00
Rating agency fees . . . . . . . . . . . . . . . . . . . . 80,000.00
Blue sky fees, expenses and legal fees . . . . . . . . . . 10,000.00
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . 32,413.25
-----------
Total . . . . . . . . . . . . . . . . . . . . . . . $400,000.00
-----------
-----------
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article 8 of the Amended and Restated By-Laws of Arvin, as
amended, and Article 10 of its Restated Articles of Incorporation, as
amended, both provide for indemnification of officers and directors of
Arvin against expenses incurred by any of them in certain stated
proceedings and under certain stated conditions.
Chapter 37 of the Indiana Business Corporation Law authorizes
every Indiana corporation to indemnify its officers and directors
under certain circumstances against liability incurred in connection
with the defense of proceedings in which they are made parties, or
threatened to be made parties, by reason of such relationship to the
corporation, except where they are adjudged liable for specific types
of negligence or misconduct in the performance of their duties to the
corporation. Chapter 37 also requires every Indiana corporation to
indemnify any of its directors and, unless such corporation's articles
of incorporation provide otherwise, any of its officers who were
wholly successful, on the merits or otherwise, in the defense of any
such proceeding against reasonable expenses incurred by such director
in connection with such proceeding.
Officers and directors of Arvin are presently covered by
insurance which (with certain exceptions and within certain
limitations) indemnifies them against any losses or liabilities
arising from any alleged "wrongful act," including any breach of duty,
neglect, error, misstatement, misleading statement, omission or other
acts done or wrongfully attempted.
Section 7 of the form of Underwriting Agreement filed as Exhibit
1-1 hereto provides for indemnification by the Underwriters of
officers and directors of Arvin in certain circumstances.
ITEM 16. EXHIBITS.
1-1 Form of Underwriting Agreement.
4-1 Amended and Restated Articles of Incorporation and amendments
thereto (incorporated by reference to Exhibit 3(A) to the
Company's Form 10-K for its fiscal year ended December 30, 1990).
4-2 Amended and Restated By-Laws (incorporated by reference to
Exhibit 3(ii) to the Company's Form 10-Q/A for the quarter ended
July 4, 1993).
4-3 Rights Agreement between the Company and Harris Trust and Savings
Bank, as amended (incorporated by reference to the Company's
Current Report on Form 8-K dated June 16, 1986 and the Company's
Current Report on Form 8-K dated February 23, 1989).
4-4 Indenture, dated as of July 3, 1990, between the Company and
Harris Trust and Savings Bank, as trustee, relating to the Senior
Debt Securities.
4-5 Form of Indenture, dated as of _______________, 1994, to be
entered into between the Company and NBD Bank, N.A., as trustee,
relating to the Subordinated Debt Securities.
4-6 Form of Deposit Agreement, including form of Depositary Receipt
for Depositary Shares.
4-7 Form of Debt Warrant Agreement.
4-8 Form of Equity Warrant Agreement.
5-1 Opinion of Schiff Hardin & Waite.
12-1 Computation of Ratios of Earnings to Fixed Charges and Earnings
to Combined Fixed Charges and Preferred Dividends.
23-1 Consent of Price Waterhouse.
23-2 Consent of KPMG Peat Marwick.
23-3 Consent of Schiff Hardin & Waite (included in Exhibit 5-1).
24-1 Power of Attorney is included below, beginning immediately prior
to "Signatures."
25-1 Form T-1 Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of Trustee for Senior Indenture.
25-2 Form of T-1 Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of Trustee for Subordinated
Indenture.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(a) 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 Securities Act of 1933;
(ii) to reflect in the prospectus any fact 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 this
registration statement;
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in this
registration statement or any material change to such
information in the registration statement;
provided, however, that the undertakings set forth in the 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
that are incorporated by reference in this registration statement.
(b) that, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) 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.
(d) that, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report
pursuant to Sections 13(a) or 15(d) of the Securities Exchange Act of
1934 that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the provisions
described under Item 15 above, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in such 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 such Act and will be
governed by the final adjudication of such issue.
POWER OF ATTORNEY
Each person whose signature appears below appoints Byron O. Pond,
Ronald R. Snyder and Richard A. Smith, or any of them, as such
person's true and lawful attorneys to execute in the name of each such
person, and to file, any amendments to this registration statement
that any of such attorneys shall deem necessary or advisable in
connection with the registration of the Securities of the Registrant
that are subject to this registration statement, which amendments may
make such changes in such registration statement as any of the above-
named attorneys deems appropriate, and to comply with the undertakings
of the Registrant made in connection with this registration statement;
and each of the undersigned hereby ratifies all that any of said
attorneys shall do or cause to be done by virtue thereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant, Arvin Industries, Inc., 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 Columbus and State of Indiana, on this 8th day of April, 1994.
ARVIN INDUSTRIES, INC.
By: /s/ Byron O. Pond
----------------------------------
Byron O. Pond, Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons
in the capacities indicated on the dates indicated.
Signature Title Date
/s/ Byron O. Pond President, Chief 4/8/94
_____________________________ Executive Officer and
Byron O. Pond Director
/s/ Richard A. Smith Vice President-Finance, 4/8/94
_____________________________ Chief Financial Officer
Richard A. Smith and Director
/s/ Rex L. Emshwiller Controller and Chief 4/8/94
_____________________________ Accounting Officer
Rex L. Emshwiller
/s/ James K. Baker
_____________________________ Chairman of the Board 4/8/94
James K. Baker
Signature Title Date
/s/ Joseph P. Allen
_____________________________ Director 4/8/94
Joseph P. Allen
/s/ Steven C. Beering
_____________________________ Director 4/8/94
Steven C. Beering
/s/ Joseph P. Flannery
_____________________________ Director 4/8/94
Joseph P. Flannery
/s/ Robert E. Fowler, Jr.
_____________________________ Director 4/8/94
Robert E. Fowler, Jr.
/s/ William D. George
_____________________________ Director 4/8/94
William D. George
/s/ Ivan W. Gorr
_____________________________ Director 4/8/94
Ivan W. Gorr
/s/ Richard W. Hanselman
_____________________________ Director 4/8/94
Richard W. Hanselman
_____________________________ Director
Thomas A. Holmes
/s/ V. William Hunt
_____________________________ Director 4/8/94
V. William Hunt
/s/ Don J. Kacek
_____________________________ Director 4/8/94
Don J. Kacek
/s/ Frederick R. Meyer
_____________________________ Director 4/8/94
Frederick R. Meyer
_____________________________ Director
Arthur R. Velasquez
EXHIBIT INDEX
Exhibit
No. Description
1-1 Form of Underwriting Agreement.
4-1 Amended and Restated Articles of Incorporation and amendments
thereto (incorporated by reference to Exhibit 3(A) to the
Company's Form 10-K for its fiscal year ended December 30, 1990).
4-2 Amended and Restated By-Laws (incorporated by reference to
Exhibit 3(ii) to the Company's Form 10-Q/A for the quarter ended
July 4, 1993).
4-3 Rights Agreement between the Company and Harris Trust and Savings
Bank, as amended (incorporated by reference to the Company's
Current Report on Form 8-K dated June 16, 1986 and the Company's
Current Report on Form 8-K dated February 23, 1989).
4-4 Indenture, dated as of July 3, 1990, between the Company and
Harris Trust and Savings Bank, as trustee, relating to the Senior
Debt Securities.
4-5 Form of Indenture, dated as of _______________, 1994, to be
entered into between the Company and NBD Bank, N.A., as trustee,
relating to the Subordinated Debt Securities.
4-6 Form of Deposit Agreement, including form of Depositary Receipt
for Depositary Shares.
4-7 Form of Debt Warrant Agreement.
4-8 Form of Equity Warrant Agreement.
5-1 Opinion of Schiff Hardin & Waite.
12-1 Computation of Ratios of Earnings to Fixed Charges and Earnings
to Combined Fixed Charges and Preferred Dividends.
23-1 Consent of Price Waterhouse.
23-2 Consent of KPMG Peat Marwick.
23-3 Consent of Schiff Hardin & Waite (included in Exhibit 5-1).
24-1 Power of Attorney is included above, beginning immediately prior
to "Signatures."
25-1 Form T-1 Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of Trustee for Senior Indenture.
25-2 Form of T-1 Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of Trustee for Subordinated
Indenture.