Registration No. 33-61237
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
AMENDMENT NO. 1
to
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
______________
GIDDINGS & LEWIS, INC.
(Exact name of registrant as specified in its charter)
Wisconsin 39-1643189
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
142 Doty Street
Fond du Lac, Wisconsin 54935
(414) 921-9400
(Address, including zip code, and
telephone number, including area code, of
registrant's principal executive offices)
______________________________
Joseph R. Coppola
Chairman and Chief Executive Officer
Giddings & Lewis, Inc.
142 Doty Street
Fond du Lac, Wisconsin 54935
(414) 921-9400
(Name, address, including zip code,
and telephone number, including area
code, of agent for service)
______________________________
with a copy to:
Benjamin F. Garmer, III Gary T. Johnson
Foley & Lardner Jones, Day, Reavis & Pogue
777 East Wisconsin Avenue 77 West Wacker
Milwaukee, Wisconsin 53202 Chicago, Illinois 60601
________________________
Approximate date of commencement of proposed sale to the public:
From time to time after this Registration Statement becomes effective.
________________________
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please check
the following box. [_]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection
with dividend or interest reinvestment plans, please check the following
box. [X]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check
the following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same
offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) of the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [X]
_________________
CALCULATION OF REGISTRATION FEE
Title of Each Proposed Proposed
Class of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Unit (1) Price (1) Fee (2)
Debt Securities $250,000,000 100% $250,000,000 $86,207
(1) Estimated in accordance with Rule 457(a) under the Securities Act of
1933 solely for purposes of calculating the registration fee.
(2) $51,725 of the registration fee was paid with the filing of the
Registration Statement.
________________________
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.
SUBJECT TO COMPLETION, DATED AUGUST 8, 1995
PROSPECTUS
$250,000,000
GIDDINGS & LEWIS/R/
Debt Securities
____________________
Giddings & Lewis, Inc. (the "Company") may from time to time offer up
to $250 million aggregate principal amount, or, if applicable, the
equivalent thereof in one or more foreign currencies or currency units, of
its unsecured debt securities consisting of notes, debentures or other
evidences of indebtedness (the "Debt Securities"). The Debt Securities
may be offered as separate series in amounts, at prices and on terms to
be determined at the time or times of sale. An accompanying supplement to
this Prospectus (the "Prospectus Supplement") will set forth the specific
terms and conditions of the Debt Securities offered thereby, including,
where applicable, the specific designation, aggregate principal amount,
denominations, maturity, rate or rates and time or times of payment of
interest, any terms for redemption, any terms for sinking or analogous
fund payment(s), the initial public offering price, the proceeds to the
Company and any other specific terms in connection with the offering and
sale of such Debt Securities.
The Company may sell the Debt Securities to or through underwriters
or dealers, and may also sell Debt Securities directly to other purchasers
or through agents designated from time to time by the Company. See "Plan
of Distribution." The names of such underwriters, dealers or agents, any
applicable commissions or discounts and the net proceeds to the Company
from the sale of the Debt Securities will be set forth in the accompanying
Prospectus Supplement.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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 STATE.
The date of this Prospectus is , 1995.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports and other information with the
Securities and Exchange Commission (the "Commission"). Reports, proxy
statements and other information filed by the Company 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: Midwest Regional Office,
Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661; and Northeast Regional Office, 7 World Trade Center, Suite 1300,
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.
The Company has filed with the Commission a Registration
Statement on Form S-3 (together with any amendments thereto, the
"Registration Statement") (of which this Prospectus is a part) under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to
the Debt Securities. This Prospectus does not contain all of the
information set forth in such Registration Statement, certain parts of
which have been omitted in accordance with the rules and regulations of
the Commission. Statements contained in this Prospectus as to the
contents of any contract or other document are not necessarily complete,
and in each instance reference is made to the copy of such contract or
other document filed or incorporated by reference as an exhibit to the
Registration Statement, each such statement being qualified in all
respects by such reference and the exhibits and schedules thereto. For
further information regarding the Company and the Debt Securities,
reference is hereby made to the Registration Statement and such exhibits
and schedules, which may be inspected without charge at the office of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, and copies
of which may be obtained from the Commission upon payment of the fees
prescribed by the Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by the Company with the
Commission pursuant to the Exchange Act are hereby incorporated herein by
reference:
1. The Company's Annual Report on Form 10-K for the year ended
December 31, 1994.
2. The Company's Quarterly Report on Form 10-Q for the quarter
ended April 2, 1995.
3. The Company's Current Reports on Form 8-K dated April 24,
1995 and July 19, 1995.
All documents filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the termination of the offering made by this
Prospectus shall be deemed to be incorporated in this Prospectus by
reference and to be a part hereof from the respective dates of filing of
such documents. Any statement contained in a document incorporated or
deemed to be incorporated by reference in this Prospectus shall be deemed
to be modified or superseded for purposes of this Prospectus to the extent
that a statement contained in this Prospectus or in any other subsequently
filed document which also is or is deemed to be incorporated by reference
in this Prospectus modifies or supersedes such statement. Any statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person, including
any beneficial owner, to whom this Prospectus is delivered, upon written
or oral request of such person, a copy of any or all of the documents that
have been or may be incorporated in this Prospectus by reference (not
including exhibits to such documents unless such exhibits are specifically
incorporated by reference into such documents). Requests should be
directed to Richard C. Kleinfeldt, Vice President-Finance and Secretary,
Giddings & Lewis, Inc., 142 Doty Street, Fond du Lac, Wisconsin 54935
(Telephone: (414) 921-9400).
Unless otherwise indicated, currency amounts in this Prospectus and
any Prospectus Supplement are stated in United States dollars ("$",
"dollars", "U.S. dollars" or "U.S. $").
THE COMPANY
The Company is a leading global designer and producer of large,
highly-engineered, high-precision, industrial automation systems,
including automated machine tools, smart manufacturing systems, flexible
transfer lines, assembly automation systems, measuring systems, industrial
controls, and related products and services. These products are supplied
primarily to the automotive, construction, aerospace, defense, appliance,
energy and electronics industries. Through its April 1995 acquisition of
Fadal Engineering Company, Inc., the Company expanded its product
offerings to include computer numerically controlled vertical machining
centers used in industrial machine shops. The Company manufactures its
products at fourteen facilities located in the United States, Canada,
England and Germany.
The Giddings & Lewis name has been continuously present in the
Company's domestic markets for over 100 years. The Company's overall
business strategy is to continue to strengthen its position within the
global industrial automation marketplace by providing its customers with a
creative, single source for a broad range of manufacturing products and
services. The key ongoing elements of the Company's business strategy are
to (i) continue to implement a focused customer-oriented marketing
approach, (ii) expand and extend the Company's product lines, and (iii)
expand its international franchise.
The Company is incorporated in the State of Wisconsin and its
principal offices are located at 142 Doty Street, Fond du Lac, Wisconsin
54935. The Company's telephone number is (414) 921-9400.
USE OF PROCEEDS
The Company currently intends to use the net proceeds from the sale
of any Debt Securities for general corporate purposes, which may include
the reduction of indebtedness, possible acquisitions and such other
purposes as will be stated in any Prospectus Supplement. Pending such
use, the net proceeds may be temporarily invested in short-term investment
securities or deposited in interest-bearing accounts. The precise amounts
and timing of the application of proceeds will depend upon the funding
requirements of the Company and the availability of other funds.
RATIOS OF EARNINGS TO FIXED CHARGES
Set forth below are the ratios of earnings to fixed charges
(unaudited) for the Company for the three months ended April 2, 1995 and
for the last five years:
Year Ended December 31,
Three Months Ended
April 2, 1995 1994 1993 1992 1991 1990
18.2 32.6 15.4 5.2 15.9 61.4
For the purpose of computing the ratios of earnings to fixed
charges, earnings have been calculated by adding fixed charges (excluding
capitalized interest) to income before income taxes. Fixed charges
represent interest expense and the estimated interest component of
rentals.
DESCRIPTION OF THE DEBT SECURITIES
The Debt Securities will be issued under an Indenture (the
"Indenture") by and between the Company and Firstar Trust Company, as
Trustee (the "Trustee"). The Indenture provides that Debt Securities may
be issued from time to time in one or more series pursuant to the terms of
one or more Officer's Certificates or supplemental indentures creating
such series. The particular terms of each series, or of Debt Securities
forming a part of a series, which are offered by a Prospectus Supplement
("Offered Debt Securities") will be described in such Prospectus
Supplement.
The following summaries of certain provisions of the Indenture and
the Debt Securities do not purport to be complete and are subject to, and
are qualified in their entirety by reference to, all the provisions of the
Indenture and any Officer's Certificates or any supplemental indentures
relating thereto, including the definitions therein of certain terms.
Wherever particular Sections or defined terms of the Indenture are
referred to herein or in a Prospectus Supplement, such Sections or defined
terms are incorporated by reference herein or therein, as the case may be.
General
The Indenture provides that Debt Securities in separate series may
be issued thereunder from time to time without limitation as to aggregate
principal amount. The Company may specify a maximum aggregate principal
amount for the Debt Securities of any series. (Section 301) The Debt
Securities are to have such terms and provisions which are not
inconsistent with the Indenture, including terms and provisions relating
to maturity, principal and interest, as the Company may determine. The
Debt Securities will be unsecured unsubordinated obligations of the
Company and will rank on a parity with all other unsecured and
unsubordinated indebtedness of the Company.
The applicable Prospectus Supplement will set forth the price or
prices at which the Offered Debt Securities will be issued and will
describe the following terms of such Offered Debt Securities: (i) the
title of such Offered Debt Securities; (ii) any limit on the aggregate
principal amount of such Offered Debt Securities or the series of which
they are a part; (iii) if other than the Trustee, the identity of each
Security Registrar and Paying Agent; (iv) the date or dates, or the method
by which such date or dates are determined or extended, on which the
principal and premium (if any) of any of such Offered Debt Securities will
be payable; (v) the rate or rates (which may be fixed or variable) at
which any of such Offered Debt Securities will bear interest, or the
method, if any, by which such rates will be determined, the date or dates
from which any such interest will accrue, the Interest Payment Dates on
which any such interest will be payable, or the method by which such date
will be determined, and the basis on which interest shall be calculated,
if other than that of a 360-day year of twelve thirty-day months; (vi) if
other than the fifteenth day next preceding an Interest Payment Date, the
Regular Record Date with respect to an Interest Payment Date; (vii) the
place or places, if any, other than or in addition to the Corporate Trust
Office, where the principal of and any premium and interest on any of such
Offered Debt Securities will be payable; (viii) the period or periods
within which, the price or prices at which and the terms and conditions on
which any of such Offered Debt Securities may be redeemed, in whole or in
part, at the option of the Company; (ix) the obligation, if any, of the
Company to redeem, repay or purchase any of such Offered Debt Securities
pursuant to any sinking fund or analogous provision or at the option of
the Holder thereof, and the period or periods within which, the price or
prices at which and the terms and conditions on which any of such Offered
Debt Securities will be redeemed, repaid or purchased, in whole or in
part, pursuant to any such obligation; (x) the denominations in which any
of such Offered Debt Securities will be issuable, if other than
denominations of $1,000 and any integral multiple thereof; (xi) if other
than the currency of the United States of America, the currency,
currencies or currency units in which the principal of or any premium or
interest on any of such Offered Debt Securities will be payable (and the
manner in which the equivalent of the principal amount thereof in the
currency of the United States of America is to be determined for purposes
of determining the principal amount deemed to be Outstanding at any time);
(xii) if the amount of principal of or any premium or interest on any of
such Offered Debt Securities may be determined with reference to an index,
the manner in which such amounts will be determined; (xiii) if the
principal of or any premium or interest on any of such Offered Debt
Securities is to be payable, at the election of the Company or the Holder
thereof, in one or more currencies or currency units other than those in
which such Offered Debt Securities are stated to be payable, the currency,
currencies or currency units in which payment of any such amount as to
which such election is made will be payable, and the periods within which
and the terms and conditions upon which such election is to be made;
(xiv) if other than the principal amount thereof, the portion of the
principal amount of any of such Offered Debt Securities which will be
payable upon declaration of acceleration of the Maturity thereof; (xv) if
applicable, that such Offered Debt Securities, in whole or any specified
part, are defeasible pursuant to the provisions of the Indenture described
under "Defeasance - Defeasance and Discharge" or "Defeasance - Covenant
Defeasance", or under both such captions; (xvi) any addition to or change
in the Events of Default applicable to any of such Offered Debt Securities
and any change in the right of the Trustee or the Holders to declare the
principal of and any premium or interest on any of such Offered Debt
Securities due and payable; (xvii) any addition to or change in the
covenants and definitions in the Indenture or in the provisions of the
Indenture described under "Consolidation, Merger, Conveyance or Transfer"
and under "Covenants"; (xviii) whether any of such Offered Debt Securities
will be issuable in whole or in part in the form of one or more Global
Securities and, if so, the respective Depositaries for such Global
Securities and, if different from those described under the Indenture
caption entitled "Registration, Registration of Transfer and Exchange,"
any circumstances under which any such Global Security may be exchanged
for Offered Debt Securities registered, and any transfer of such Global
Security may be registered, in the names of Persons other than the
Depositary for such Global Security or its nominee; and (xix) any other
terms of such Offered Debt Securities not inconsistent with the provisions
of the Indenture. (Section 301) If specified in any applicable
Prospectus Supplement, the Debt Securities of any series may be issued in
bearer form, and if so issued, the applicable Prospectus Supplement will
describe any additions to or changes in any of the provisions of the
Indenture which are necessary to permit or facilitate such issuance.
(Section 901)
Debt Securities, including Original Issue Discount Securities, may
be sold at a substantial discount below their principal amount. Certain
special United States federal income tax considerations (if any)
applicable to Debt Securities sold at an original issue discount will be
described in the applicable Prospectus Supplement. In addition, certain
special United States federal income tax or other considerations (if any)
applicable to any Debt Securities which are denominated in a currency or
currency unit other than United States dollars will be described in the
applicable Prospectus Supplement.
Except to the extent that the covenants described under the caption
"Restrictive Covenants" may otherwise provide, neither the Indenture nor
the Debt Securities will contain any covenants or other provisions
designed to afford Holders of the Debt Securities protection in the event
of a highly leveraged transaction, change in credit rating or other
similar occurrence involving the Company or any Subsidiary.
Form, Exchange and Transfer
Unless otherwise specified in the applicable Prospectus Supplement,
the Debt Securities of each series will be issuable only in fully
registered form, without coupons, and only in denominations of $1,000 and
integral multiples thereof. (Section 302)
At the option of the Holder, subject to the terms of the Indenture
and the limitations applicable to Global Securities, Debt Securities of
each series will be exchangeable for other Debt Securities of the same
series of any authorized denomination and of a like tenor and aggregate
principal amount. (Section 305)
Subject to the terms of the Indenture and the limitations
applicable to Global Securities, Debt Securities may be presented for
exchange as provided above or for registration of transfer (duly endorsed
or with a written instrument of transfer duly executed) at the office of
the Security Registrar or at one or more offices or agencies designated by
the Company for such purpose. No service charge will be made for any
registration of transfer or exchange of Debt Securities, but the Company
or the Trustee will require payment of a sum sufficient to cover any tax
or other governmental charge payable in connection therewith. Such
transfer or exchange will be effected upon the Security Registrar being
satisfied with the documents of title and identity of the person making
the request. Unless otherwise set forth in the applicable Prospectus
Supplement, the Company has appointed the Trustee as Security Registrar
for each series of Debt Securities for the purpose of registering Debt
Securities and transfers of Debt Securities at its Corporate Trust Office
in Milwaukee, Wisconsin. (Section 305) Any other office or agency (in
addition to the Security Registrar) initially designated by the Company
for the registration and transfer of any Debt Securities will be named in
the applicable Prospectus Supplement. The Company may at any time
designate additional offices and agencies for the registration and
transfer or exchange of any Debt Securities or rescind such designations,
except that the Company will be required to maintain an office or agency
in each Place of Payment for the Debt Securities of each series.
(Section 1002)
If the Debt Securities of any series are to be redeemed in part,
the Company will not be required to (i) issue, register the transfer of or
exchange any Debt Security of that series during a period beginning at the
opening of business 15 days before the selection of such Debt Securities
of that series to be redeemed and ending at the close of business on the
day of the mailing of a notice of redemption; or (ii) register the
transfer of or exchange any Debt Security so selected for redemption, in
whole or in part, except the unredeemed portion of any such Debt Security
being redeemed in part. (Section 305)
Global Securities
Some or all of the Debt Securities of any series may be
represented, in whole or in part, by one or more Global Securities which
will have an aggregate principal amount equal to that the Debt Securities
represented thereby. Each Global Security will be registered in the name
of a Depositary or a nominee thereof identified in the applicable
Prospectus Supplement, and will be deposited with such Depositary or
nominee or a custodian therefor.
Notwithstanding any provision of the Indenture or any Debt Security
described herein, no Global Security may be exchanged for Debt Securities
registered in the name of, and no transfer of a Global Security may be
registered to, any Person other than the Depositary for such Global
Security or any nominee of such Depositary unless (i) the Depositary
notifies the Company that it is unwilling or unable to continue as
Depositary for such Global Security or if the Company determines that the
Depositary is unable to continue as Depositary and the Company thereupon
fails to appoint a successor Depositary; (ii) the Company executes and
delivers to the Trustee a Company Order that such Global Security shall be
so exchangeable and the transfer thereof so registerable; (iii) the
Company provides for such exchange in creating such Global Security (which
will be described in any applicable Prospectus Supplement); (iv) there
shall have occurred and be continuing an Event of Default with respect to
the Debt Securities evidenced by such Global Security; or (v) there shall
exist such circumstances, if any, in addition to or in lieu of those
described above as may be described in the applicable Prospectus
Supplement. All securities issued in exchange for a Global Security or
any portion thereof will be registered in such names as the Depositary may
direct. (Section 305)
As long as the Depositary, or its nominee, is the registered Holder
of a Global Security, the Depositary or such nominee, as the case may be,
will be considered the sole owner and Holder of such Global Security and
the Debt Securities represented thereby for all purposes under the Debt
Securities and the Indenture. Except in the limited circumstances
referred to above, owners of beneficial interests in a Global Security
will not be entitled to have such Global Security or any Debt Securities
represented thereby registered in their names, will not receive or be
entitled to receive physical delivery of certificates representing Debt
Securities in exchange therefor and will not be considered to be the
owners or Holders of such Global Security or any Debt Securities
represented thereby for any purpose under the Debt Securities or the
Indenture. All payments of principal of and any premium and interest on a
Global Security will be made to the Depositary or its nominee, as the case
may be, as the Holder thereof. The laws of some jurisdictions require
that certain purchasers of securities take physical delivery of such
securities in definitive form. These laws may impair the ability to
transfer beneficial interests in a Global Security.
Ownership of beneficial interests in a Global Security will be
limited to institutions that have accounts with the Depositary or its
nominee ("participants") and to persons that may hold beneficial interests
through participants. In connection with the issuance of any Global
Security, the Depositary will credit, on its book-entry registration and
transfer system, the respective principal amounts of Debt Securities
represented by the Global Security to the accounts of its participants.
Ownership of beneficial interests in a Global Security will be shown only
on, and the transfer of those ownership interests will be effected only
through, records maintained by the Depositary (with respect to
participants' interests) or any such participant (with respect to
interests of persons held by such participants on their behalf).
Payments, transfers, exchanges and other matters relating to beneficial
interests in a Global Security may be subject to various policies and
procedures adopted by the Depositary from time to time. None of the
Company, the Trustee, the Security Registrar, the Paying Agent or any
agent of the Company or the Trustee will have any responsibility or
liability for (i) any aspects of the Depositary's or any participant's
records relating to, or for payments made on account of, beneficial
interests in a Global Security, or for maintaining, supervising or
reviewing any records relating to such beneficial interests; (ii) the
payments to the beneficial owners of the Global Security of amounts paid
to the Depositary or its nominee; or (iii) any other matter related to the
actions and practices of the Depositary. (Section 305)
Secondary trading of notes and debentures of corporate issuers is
generally settled in clearing-house or next-day funds. In contrast,
beneficial interests in a Global Security, in some cases, may trade in the
Depositary's same-day funds settlement system, in which secondary market
trading activity in those beneficial interests would be required by the
Depositary to settle in immediately available funds. There is no
assurance as to the effect, if any, that settlement in immediately
available funds would have on trading activity in such beneficial
interests. Also, settlement for purchases of beneficial interests in a
Global Security upon the original issuance thereof may be required to be
made in immediately available funds.
Payment and Paying Agents
Unless otherwise indicated in the applicable Prospectus Supplement,
payment of interest on a Debt Security on any Interest Payment Date will
be made to the Person in whose name such Debt Security (or one or more
Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest. (Section 307)
Principal and any premium and interest due on a Debt Security upon
Maturity or upon redemption or repurchase will be paid by wire transfer
(if appropriate instructions are received) against presentation and
surrender of the Debt Security by the Holder thereof at the office of the
Paying Agent. Interest payments on any Debt Security (other than interest
due at Maturity or on redemption or repurchase) will be made by check
mailed to the address of the Person entitled thereto as such address
appears in the Security Register; provided that a Holder of Debt
Securities of any series which pay interest on the same day and which are
in an aggregate principal amount in excess of $10,000,000 may elect to
receive payments of interest with respect to such series via wire
transfer. (Section 307) The Paying Agent or Agents initially designated
by the Company for the Debt Securities of a particular series will be
named in the applicable Prospectus Supplement. The Company may at any
time designate additional Paying Agents or one or more other offices or
agencies where the Debt Securities may be presented or surrendered for
payment and from time to time rescind such designations, except that the
Company will be required to maintain an office or agency in each Place of
Payment for the Debt Securities of a particular series. (Section 1002)
All moneys paid by the Company to a Paying Agent or the Trustee for
the payment of the principal of or any premium or interest on any Debt
Security which remain unclaimed at the end of one year after such
principal, premium or interest has become due and payable will be repaid
to the Company, and the Holder of such Security thereafter may, as an
unsecured creditor, look only to the Company for payment thereof, and all
liability of the Paying Agent and the Trustee with respect thereto, and
all liability of the Company as a trustee thereof, shall thereupon cease.
(Section 1003)
Restrictive Covenants
Limitations on Liens.
The Indenture provides that the Company may not, nor may it permit
any Restricted Subsidiary to, issue, assume or guarantee any indebtedness
for borrowed money (herein referred to as "Debt") if such Debt is secured
by a mortgage or lien (herein referred to as a "Mortgage") upon any
Principal Property of the Company or any Restricted Subsidiary or on any
shares of stock or Debt of any Restricted Subsidiary without in any such
case effectively providing that the Debt Securities of any series
Outstanding (together with, if the Company so determines, any other Debt
of the Company or such Restricted Subsidiary then existing or thereafter
created that is not subordinated to the Debt Securities) must be secured
equally and ratably with or prior to such secured Debt, unless the
aggregate amount of all such Debt plus all Attributable Debt (other than
Attributable Debt the proceeds of which are applied to reduce certain
indebtedness) would not exceed 10% of Consolidated Net Tangible Assets.
The foregoing restriction will not, however, apply to (i) Mortgages
existing on the date of the Indenture; (ii) Mortgages on property, shares
of stock or Debt of any corporation or other entity existing at the time
such corporation or other entity becomes a Restricted Subsidiary or an
obligor under the Indenture; (iii) Mortgages in favor of the Company or
any Restricted Subsidiary by a Restricted Subsidiary; (iv) Mortgages in
favor of the United States of America or any state thereof, or any agency
or instrumentality thereof, to secure progress, advance or other payments
pursuant to any contract with any such entity or provision of any statute;
(v) Mortgages on property, shares of stock or Debt existing at the time of
acquisition thereof, Mortgages on property which secure the payment of the
purchase price of such property, or Mortgages on property which secure
Debt incurred for the purpose of financing the purchase price of such
property or the construction or development of such property, which Debt
is incurred within 360 days after such acquisition or completion of such
construction or development; (vi) Mortgages to secure the performance of
statutory obligations, surety or appeal bonds, performance bonds or other
obligations of a like nature incurred in the ordinary course of business;
(vii) any extension, renewal or refinancing (or successive extensions,
renewals or refinancings), in whole or in part, of any Mortgage referred
to in the foregoing clauses (i) to (vi), inclusive, provided, however,
that such extension, renewal or refinancing Mortgage is limited to all or
a part of the same property (plus improvements thereon), shares of stock
or Debt that secured the Mortgage extended, renewed or refinanced and the
amount of Debt secured by such Mortgage is not increased; or (viii)
Mortgages for taxes, assessments or governmental charges or claims that
are not yet delinquent or that are being contested in good faith by
appropriate proceedings promptly instituted and diligently concluded,
provided, that any reserve or other appropriate provision as shall be
required in conformity with generally accepted accounting principles shall
have been made therefor. (Section 1005)
Limitations on Sale and Leaseback Transactions.
The Company will not, and will not permit any Restricted Subsidiary
to, enter into any arrangement with any bank, insurance company or other
lender or investor (not including the Company or any Restricted
Subsidiary), or to which any such lender or investor is a party, providing
for the leasing by the Company or a Restricted Subsidiary for a period,
including renewals, in excess of three years of any Principal Property
that has been sold or transferred, more than 360 days after the completion
of construction and commencement of full operation thereof, by the Company
or a Restricted Subsidiary to such lender or investor or to any Person to
whom funds have been or are to be advanced by such lender or investor on
the security of such Principal Property (a "Sale and Leaseback
Transaction") unless either (i) the Company or such Restricted Subsidiary
would be entitled to issue, assume or guarantee Debt secured by a Mortgage
on the Principal Property to be leased back at least equal in amount to
the Attributable Debt in respect of such transaction without equally and
ratably securing the Debt Securities of any series Outstanding which are
entitled to the benefits of such provision of the Indenture, provided that
such Attributable Debt shall thereupon be deemed to be Debt subject to the
provisions of the "Limitations on Liens" covenant; or (ii) an amount equal
to the net proceeds of the sale of the Principal Property sold and leased
back pursuant to such arrangement is applied to the retirement of Debt
Securities or Debt of the Company or a Restricted Subsidiary having a
remaining maturity of one year or more and which is not subordinated to
the Debt Securities of any series Outstanding. (Section 1006)
"Attributable Debt" means as to any particular Sale and Leaseback
Transaction, at any date as of which the amount thereof is to be
determined, the total amount determined by multiplying (i) the greater of
(a) the fair value of the Principal Property subject to such arrangement
or (b) the net proceeds of the sale of such Principal Property to the
lender or investor; by (ii) a fraction, the numerator of which is the
number of months in the unexpired initial term of the lease of such
Principal Property and the denominator of which is the number of months in
the full initial term of such lease; provided, however, that Sale and
Leaseback Transactions with respect to Principal Property financed by
obligations issued by a state or local government unit will not be
included in any calculation of Attributable Debt.
"Consolidated Net Tangible Assets" means the aggregate amount of
assets less (a) all current liabilities (excluding any current liabilities
for money borrowed having a maturity of less than 12 months but by its
terms being renewable or extendible beyond 12 months from such date at the
option of the borrower) and (b) all goodwill, trade names, trademarks,
patents, unamortized debt discount and expense and other like intangibles,
all as set forth on the most recent consolidated balance sheet of the
Company prepared in accordance with generally accepted accounting
principles.
"Principal Property" means any land, building, machinery or
equipment, or leasehold interests and improvements in respect of the
foregoing owned by the Company or a Restricted Subsidiary, which would be
reflected on a consolidated balance sheet of the Company and its
Subsidiaries prepared in accordance with generally accepted accounting
principles and which on the date as of which the determination is being
made exceeds one percent of the Consolidated Net Tangible Assets, but
excluding all such tangible property located outside the United States of
America and excluding any property which, in the opinion of the Board of
Directors set forth in a Board Resolution, is not of material importance
to the total business conducted by the Company and its Subsidiaries, taken
as a whole.
"Restricted Subsidiary" means any Subsidiary that in accordance
with generally accepted accounting principles is consolidated with the
Company in the Company's consolidated financial statements and that
generated 5% or more of the revenues, generated 5% or more of the
operating income, or held 5% or more of the assets of the Company and its
consolidated Subsidiaries for or at the end of the most recently completed
fiscal year of the Company for which an Annual Report on Form 10-K or
proxy statement of the Company containing audited financial results has
been filed with the Commission; provided, however, that "Restricted
Subsidiary" shall not include a Subsidiary that is engaged primarily in
financing the operations of the Company or its Subsidiaries, or both,
outside of the United States, and (i) more than 50% of whose net sales and
operating revenues during the preceding four calendar quarters was derived
from, or more than 50% of whose operating property is located in, the
United States or (ii) more than 50% of whose assets consist of securities
of other Restricted Subsidiaries.
"Subsidiary" means any corporation or other entity of which more
than 80% of the outstanding voting stock shall at the time be owned by the
Company or by the Company and one or more Subsidiaries or by one or more
Subsidiaries. (Section 101)
Consolidation, Merger and Sale of Assets
The Company may not consolidate with, or sell or convey all or
substantially all of its assets to, or merge with or into any other person
or entity unless (i) either the Company is the continuing corporation, or
the successor is a corporation organized and existing under the laws of
the United States or a state thereof and the successor corporation
expressly assumes by an indenture supplement the Company's obligations on
the Debt Securities and under the Indenture; (ii) the Company or the
successor corporation, as the case may be, is not immediately after the
merger or consolidation, or the sale or conveyance, in default in the
performance of any covenant or condition under the Indenture; and
(iii) after giving effect to the transaction, no Event of Default, and no
event which, after notice or lapse of time or both, would become an Event
of Default, shall have occurred or be continuing. (Section 801)
Events of Default
Each of the following will constitute an Event of Default under the
Indenture with respect to Debt Securities of any series: (i) default in
the payment of any interest upon any Debt Security of that series when it
became due and payable, and continuance of that default for a period of 30
days; (ii) default in the payment of the principal of (or premium, if any,
on) any Debt Security of that series when it became due and payable at its
Maturity; (iii) default in the deposit of any sinking fund payment, when
due by the terms of a Debt Security of that series; (iv) default in the
performance, or breach, of any covenant or warranty of the Company in the
Indenture with respect to any Debt Security of that series (other than a
covenant or warranty a default in the performance of which or the breach
of which is specifically dealt with elsewhere or that has expressly been
included in the Indenture solely for the benefit of a series other than
that series), and continuance of that default or breach for a period of 30
days after written notice has been given by the Trustee, or by the Holders
of at least 25% in principal amount of the Outstanding Securities of that
series, as provided in the Indenture; (v) default, after any applicable
grace period, by the Company under any instrument evidencing indebtedness
of the Company for borrowed money, if the effect of such default is to
cause more than $10,000,000 in principal amount of such indebtedness to
become due prior to its stated maturity and that acceleration shall not be
rescinded or annulled, or that indebtedness shall not have been
discharged, within 10 days after written notice has been given by the
Trustee or the Holders of at least 25% in principal amount of the
Outstanding Securities of that series, as provided in the Indenture; and
(vi) certain events in bankruptcy, insolvency or reorganization.
(Section 501)
If an Event of Default with respect to the Debt Securities of any
series at the time Outstanding shall occur and be continuing, either the
Trustee or the Holders of at least 25% in aggregate principal amount of
the Outstanding Securities of that series by notice as provided in the
Indenture may declare the principal amount of the Debt Securities of that
series (or, in the case of any Debt Security that is an Original Issue
Discount Security, such portion of the principal amount of such Debt
Security, as may be specified in the terms of such Debt Security) to be
due and payable immediately. After any such acceleration, but before a
judgment or decree based on acceleration, the Holders of a majority in
aggregate principal amount of the Outstanding Securities of that series
may, under certain circumstances, rescind and annul such acceleration if
(i) the Company has paid or deposited with the Trustee a sum sufficient to
pay (a) all overdue interest on all Outstanding Securities of that series,
(b) the principal and premium, if any, on any Debt Securities of that
series which have become due otherwise than by such acceleration and any
interest thereon at the rate or rates prescribed therefor in such Debt
Securities, (c) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed therefore
in such Debt Securities, and (d) certain fees of the Trustee; and (ii) all
Events of Default, other than the non-payment of accelerated principal (or
premium, if any) or interest on Debt Securities of that series, have been
cured or waived as provided in the Indenture. (Section 502) For
information as to waiver of defaults, see "Modification and Waiver".
Subject to the provisions of the Indenture relating to the duties
of the Trustee, in case an Event of Default shall occur and be continuing,
the Trustee will be under no obligation to exercise any of its rights or
powers under the Indenture at the request or direction of any of the
Holders, unless such Holders shall have offered to the Trustee reasonable
security or indemnity. (Section 603) Subject to such provisions for the
giving of security or the indemnification of the Trustee, the Holders of a
majority in aggregate principal amount of the Outstanding Securities of
any series will 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 the
Debt Securities of that series. (Section 512)
No Holder of a Debt Security of any series will have any right to
institute any proceeding with respect to the Indenture, or for the
appointment of a receiver or a trustee, or for any other remedy
thereunder, unless (i) such Holder has previously given to the Trustee
written notice of a continuing Event of Default with respect to the Debt
Securities of that series; (ii) the Holders of at least 25% in aggregate
principal amount of the Outstanding Securities of that series have made
written request, and such Holder or Holders have offered reasonable
indemnity, to the Trustee to institute such proceeding as Trustee; and
(iii) the Trustee has failed to institute such proceeding, and has not
received from the Holders of a majority in aggregate principal amount of
the Outstanding Securities of that series a direction inconsistent with
such request, within 60 days after such notice, request and offer.
(Section 507) However, such limitations do not apply to a suit instituted
by a Holder of a Debt Security for the enforcement of payment of the
principal of or any premium or interest on such Security on or after the
applicable due date specified in such Debt Security. (Section 508)
The Company will be required to furnish to the Trustee annually a
statement by certain of its officers as to whether or not the Company, to
their knowledge, is in default in the performance or observance of any of
the terms, provisions and conditions of the Indenture and, if so,
specifying all such known defaults. (Section 1004)
Modification and Waiver
Without the consent of any Holders of Outstanding Securities, the
Company and the Trustee may enter into one or more supplemental indentures
for any of the following purposes: (i) to evidence the succession of
another Person to the Company and the assumption by any such successor of
the covenants of the Company in the Indenture and in the Debt Securities;
(ii) to add to the covenants of the Company for the benefit of the Holders
of all or any series of Debt Securities (and if such covenants are to be
for the benefit of less than all series of Debt Securities, stating that
such covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power conferred upon the Company by
the Indenture; (iii) to add to or change any of the provisions of the
Indenture to such extent as shall be necessary to permit or facilitate the
issuance of Debt Securities of any series in bearer form, registrable or
not registrable as to principal, and with or without interest coupons, or
to permit or facilitate the issuance of Debt Securities of any series in
uncertificated form; (iv) to add to, change or eliminate any of the
provisions of the Indenture in respect of one or more series of Debt
Securities; provided, however, that any such addition, change or
elimination shall either (a) not adversely affect the rights of the
Holders of Outstanding Securities of any series in any material respect,
or (b) not apply to any Outstanding Securities of any series created prior
to the execution of such supplemental indenture where such addition,
change or elimination has an adverse effect on the rights of the Holders
of such Outstanding Securities in any material respect; (v) to secure the
Debt Securities of any series; (vi) to establish the form or terms of Debt
Securities of any series as permitted by the Indenture; (vii) to evidence
and provide for the acceptance of appointment of a successor Trustee under
the Indenture with respect to the Debt Securities of one or more series
and to add to or change any of the provisions of the Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
under the Indenture by more than one Trustee; (viii) to cure any ambiguity
or defect in and to correct or supplement any provision in the Indenture
or any Debt Security of any series that may be inconsistent with any other
provision in the Indenture or in the Debt Security of such series, or to
make any other provisions with respect to matters or questions arising
under the Indenture; provided, however, that any such action shall not
adversely affect the rights of the Holders of Outstanding Securities of
any series in any material respect; (ix) to modify, eliminate or add to
the provisions of the Indenture to such extent as shall be necessary to
effect qualification of the Indenture under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), or under any similar federal
statute hereafter enacted, and to add to the Indenture such other
provisions as may be expressly permitted by the Trust Indenture Act; or
(x) to amend or supplement the restrictions on the procedures for resale,
attempted resale and other transfers of any series of Debt Securities
(whether or not Outstanding) to reflect any change in applicable law or
regulation (or interpretation thereof) or in practices relating to the
resale or transfer of Restricted Securities generally. (Section 901)
Except as described above, the consent of the Holders of a majority
in aggregate principal amount of the Outstanding Securities of each series
affected by a modification or amendment (voting as one class) is required
for the purpose of adding any provisions to, or changing in any manner or
eliminating any of the provisions of, the Indenture pursuant to a
supplemental indenture; provided, however, that no such modification or
amendment may, without the consent of the Holder of each Outstanding
Security affected thereby, (i) extend the Stated Maturity of the principal
of, or any installment of principal of or interest on, any Security, (ii)
reduce the principal amount of, or any premium or interest on, any Debt
Security, (iii) reduce the amount of principal of an Original Issue
Discount Security payable upon acceleration of the Maturity thereof, (iv)
change the place or currency of payment of principal of, or any premium or
interest on, any Debt Security, (v) impair the right to institute suit
for the enforcement of any payment on or with respect to any Debt
Security, (vi) reduce the percentage in principal amount of Outstanding
Securities of any series, the consent of whose Holders is required for
modification or amendment of the Indenture, (vii) reduce the percentage in
principal amount of Outstanding Securities of any series necessary for
waiver of compliance with certain provisions of the Indenture or for
waiver of certain defaults or (viii) modify such provisions with respect
to modification and waiver. (Section 902)
The Holders of a majority in principal amount of the Outstanding
Securities of any series may waive compliance by the Company with certain
restrictive provisions of the Indenture. (Section 1007) The Holders of a
majority in principal amount of the Outstanding Securities of any series
may waive any past default under the Indenture, except a default in the
payment of principal, premium or interest and certain covenants and
provisions of the Indenture which cannot be amended without the consent of
the Holder of each Outstanding Security of such series affected. (Section
513)
The Indenture provides that in determining whether the Holders of
the requisite principal amount of the Outstanding Securities have given or
taken any direction, notice, consent, waiver or other action under the
Indenture as of any date, (i) the principal amount of an Original Issue
Discount Security that will be deemed to be Outstanding will be the amount
of the principal thereof that would be due and payable as of such date
upon acceleration of the Maturity thereof to such date, and (ii) the
principal amount of a Security denominated in one or more foreign
currencies or currency units that will be deemed to be Outstanding will be
the U.S. dollar equivalent, determined as of such date in the manner
prescribed for such Debt Security, of the principal amount of such Debt
Security (or, in the case of a Debt Security described in clause (i)
above, of the amount described in such clause). Certain Debt Securities,
including those for whose payment or redemption money has been deposited
or set aside in trust for the Holders and those that have been fully
defeased pursuant to Section 1302, will not be deemed to be Outstanding.
(Section 101)
Except in certain limited circumstances, the Company will be
entitled to set any day as a record date for the purpose of determining
the Holders of Outstanding Securities of any series entitled to give or
take any direction, notice, consent, waiver or other action under the
Indenture, in the manner and subject to the limitations provided in the
Indenture. In certain limited circumstances, the Trustee also will be
entitled to set a record date for action by Holders. If a record date is
set for any action to be taken by Holders of a particular series, such
action may be taken only by persons who are Holders of Outstanding
Securities of that series on that record date, whether or not such Holders
remain Holders after such record date. To be effective, such action must
be taken by Holders of the requisite principal amount of such Debt
Securities within a specific period following the record date. For any
particular record date, this period will be 90 days. (Section 104)
Defeasance and Covenant Defeasance
If and to the extent indicated in the applicable Prospectus
Supplement, the Company may elect, at its option at any time, to have the
provisions of Section 1302, relating to defeasance and discharge of
indebtedness, or Section 1303, relating to defeasance of certain
restrictive covenants in the Indenture, applied to the Debt Securities of
any series, or to any specified part of the series. (Section 1301)
Defeasance and Discharge. The Indenture provides that, upon the
Company's exercise of its option (if any) to have Section 1302 applied to
any Debt Securities, the Company will be discharged from all its
obligations with respect to such Debt Securities (except for certain
obligations to exchange or register the transfer of Debt Securities, to
replace stolen, lost or mutilated Debt Securities, to maintain paying
agencies and to hold moneys for payment in trust) upon the deposit in
trust for the benefit of the Holders of such Debt Securities of money or
U.S. Government Obligations, or both, which, through the payment of
principal and interest, if any, in respect thereof in accordance with
their terms, will provide money in an amount sufficient to pay the
principal of and any premium and interest on such Debt Securities on the
respective Stated Maturities in accordance with the terms of the Indenture
and such Debt Securities. Such defeasance or discharge may occur only if,
among other things, the Company has delivered to the Trustee an Opinion of
Counsel to the effect that Holders of such Debt Securities will not
recognize income, gain or loss for federal income tax purposes as a result
of such deposit, defeasance and discharge and will be subject to federal
income tax on the same amount, in the same manner and at the same times as
would have been the case if such deposit, defeasance and discharge were
not to occur. (Sections 1302 and 1304)
Defeasance of Certain Covenants. The Indenture provides that, upon
the Company's exercise of its option (if any) to have Section 1303 applied
to any Debt Securities, the Company may omit to comply with certain
restrictive covenants, including those described under "Restrictive
Covenants" and in clause (v) of "Events of Default" and any that may be
described in the applicable Prospectus Supplement will be deemed not to be
or result in an Event of Default, in each case with respect to such Debt
Securities. The Company, in order to exercise such option, will be
required to deposit, in trust for the benefit of the Holders of such Debt
Securities, money or U.S. Government Obligations, or both, which, through
the payment of principal and interest, if any, in respect thereof in
accordance with their terms, will provide money in an amount sufficient to
pay the principal of and any premium and interest on such Debt Securities
on the respective Stated Maturities or on redemption in accordance with
the terms of the Indenture and such Debt Securities. The Company will
also be required, among other things, to deliver to the Trustee an Opinion
of Counsel to the effect that Holders of such Debt Securities will not
recognize income, gain or loss for federal income tax purposes as a result
of such deposit and defeasance of certain obligations and will be subject
to federal income tax on the same amount, in the same manner and at the
same times as would have been the case if such deposit and defeasance were
not to occur. (Sections 1303 and 1304)
Notices
Except as may be described in any Prospectus Supplement with
respect to the Holders of a particular series of Debt Securities, notices
to Holders of Debt Securities will be given by mail to the addresses of
such Holders as they may appear in the Security Register. (Sections 101
and 106)
Title
The Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name a Debt Security is registered
as the owner thereof (whether or not such Debt Security may be overdue)
for the purpose of making payment and for all other purposes. (Section
308)
Governing Law
The Indenture and the Debt Securities will be governed by, and
construed in accordance with, the law of the State of Wisconsin. (Section
112)
Relationships with the Trustee
The Trustee is the transfer agent for the Company's common stock
and the Company maintains banking relationships with an affiliate of the
Trustee. John A. Becker, a director of the Company, is President, Chief
Operating Officer and a director of the Trustee's parent corporation,
Firstar Corporation, and a director of the Trustee.
FOREIGN CURRENCY RISKS
General
The principal of, or any premium or interest on, Debt Securities of
a series may be denominated in such foreign currencies or currency units
as may be designated by the Company at the time of offering (the "Foreign
Currency Securities").
THE INFORMATION SET FORTH BELOW DOES NOT DESCRIBE ALL RISKS OF AN
INVESTMENT IN FOREIGN CURRENCY SECURITIES THAT RESULT FROM SUCH DEBT
SECURITIES BEING DENOMINATED IN A FOREIGN CURRENCY OR CURRENCY UNIT EITHER
AS SUCH RISKS EXIST AT THE DATE OF THIS PROSPECTUS OR AS SUCH RISKS MAY
CHANGE FROM TIME TO TIME. ANY ADDITIONAL MATERIAL FOREIGN CURRENCY RISKS
PERTAINING TO A PARTICULAR DEBT SECURITY DENOMINATED IN A FOREIGN CURRENCY
WILL BE DISCLOSED IN THE PROSPECTUS SUPPLEMENT REGARDING SUCH DEBT
SECURITY. PROSPECTIVE PURCHASERS SHOULD CONSULT THEIR OWN FINANCIAL AND
LEGAL ADVISORS AS TO THE RISKS ENTAILED BY AN INVESTMENT IN FOREIGN
CURRENCY SECURITIES. FOREIGN CURRENCY SECURITIES ARE NOT AN APPROPRIATE
INVESTMENT FOR INVESTORS WHO ARE UNSOPHISTICATED WITH RESPECT TO FOREIGN
CURRENCY TRANSACTIONS.
Unless otherwise indicated in the applicable Prospectus Supplement,
a Foreign Currency Security will not be sold in, or to a resident of, the
country of the Specified Currency (as defined below) in which such Debt
Security is denominated. The information set forth below is by necessity
incomplete and prospective purchasers of Foreign Currency Securities
should consult their own financial and legal advisors with respect to any
matters that may affect the purchase or holding of a Foreign Currency
Security or the receipt of payments of principal of and any premium and
interest on a Foreign Currency Security in a Specified Currency.
Exchange Rates and Exchange Controls
An investment in Foreign Currency Securities entails significant
risks that are not associated with a similar investment in a security
denominated in U.S. dollars. Such risks include, without limitation, the
possibility of significant changes in the rate of exchange between the
U.S. dollar and the currency or currency unit designated by the Company at
the time of offering for payments of principal or any premium or interest
on the Foreign Currency Securities (the "Specified Currency") and the
possibility of the imposition or modification of foreign exchange controls
by either the United States or foreign governments. Such risks generally
depend on economic and political events and the supply of and demand for
the relevant currencies over which the Company has no control. In recent
years, rates of exchange between the U.S. dollar and certain foreign
currencies have been highly volatile and such volatility may be expected
in the future. Fluctuations in any particular exchange rate that have
occurred in the past are not necessarily indicative, however, of
fluctuations in the rate that may occur during the term of any Foreign
Currency Security. Depreciation of the Specified Currency applicable to a
Foreign Currency Security against the U.S. dollar would result in a
decrease in the U.S. dollar-equivalent yield of such Debt Security, in the
U.S. dollar-equivalent value of the principal repayable at Maturity or any
premium or interest on such Debt Security and, generally, in the U.S.
dollar-equivalent market value of such Debt Security.
Governments have imposed from time to time exchange controls and
may in the future impose or revise exchange controls at or prior to a
Foreign Currency Security's Maturity. Even if there are not exchange
controls, it is possible that the Specified Currency for any particular
Foreign Currency Security would not be available at the time or times of
payment on such Debt Security due to circumstances beyond the control of
the Company.
Judgments
In the event an action based on Foreign Currency Securities were
commenced in a court of the United States, it is likely that such court
would grant judgment relating to such Debt Securities only in U.S.
dollars. It is not clear, however, whether, in granting such judgment,
the rate of conversion into U.S. dollars would be determined with
reference to the date of default, the date judgment is rendered or some
other date. Holders of Foreign Currency Securities would bear the risk of
exchange rate fluctuations between the time the amount of the judgment is
calculated and the time the Trustee converts U.S. dollars into the
Specified Currency for payment of the judgment.
PLAN OF DISTRIBUTION
The Company may sell Debt Securities being offered hereby: (i)
directly to purchasers, (ii) through agents, (iii) through underwriters
and (iv) through dealers.
Offers to purchase Debt Securities may be solicited by agents
designated by the Company from time to time. Any such agent, who may be
deemed to be an underwriter as that term is defined in the Securities Act,
involved in the offer or sale of the Debt Securities in respect of which
this Prospectus is delivered will be named, and any commissions payable by
the Company to such agent will be set forth, in the Prospectus Supplement.
Unless otherwise indicated in the Prospectus Supplement, any such agent
will be acting on a best efforts basis for the period of its appointment.
If underwriters are utilized in the sale, the Company will execute
an underwriting agreement with such underwriters at the time of sale to
such underwriters and the names of the underwriters and the terms of the
transaction will be set forth in the Prospectus Supplement which will be
used by the underwriters to make resales of the Debt Securities in respect
of which this Prospectus is delivered to the public. Any underwriters
will acquire Debt Securities for their own account and may resell such
Debt Securities from time to time in one or more transactions, including
negotiated transactions, at fixed public offering prices or at varying
prices determined at the time of sale. Debt Securities may be offered to
the public either through underwriting syndicates represented by managing
underwriters, or directly by the managing underwriters. Only underwriters
named in the Prospectus Supplement are deemed to be underwriters in
connection with the Debt Securities offered thereby. If any underwriters
are utilized in the sale of the Debt Securities, the underwriting
agreement will provide that the obligations of the underwriters are
subject to certain conditions precedent and that the underwriters with
respect to a sale of Debt Securities will be obligated to purchase all
such Debt Securities, if any are purchased.
If a dealer is utilized in the sale of the Debt Securities in
respect of which this Prospectus is delivered, the Company will sell such
Debt Securities to the dealer, as principal. The dealer may then resell
such Debt Securities to the public at varying prices to be determined by
such dealer at the time of resale.
Agents, underwriters and dealers may be entitled under agreements
entered into with the Company to indemnification by the Company against
certain civil liabilities, including liabilities under the Securities Act,
or to contribution with respect to payments which the agents, underwriters
or dealers may be required to make in respect thereof. Agents,
underwriters and dealers may be customers of, engage in transactions with,
or perform services for the Company in the ordinary course of business.
Offers to purchase Debt Securities may be solicited directly by the
Company and sales thereof may be made by the Company directly to
institutional investors or others. The terms of any such sales will be
described in the Prospectus Supplement relating thereto.
If so indicated in the applicable Prospectus Supplement, the
Company will authorize agents and underwriters to solicit offers by
certain institutions to purchase Debt Securities from the Company at the
public offering price set forth in such Prospectus Supplement pursuant to
Delayed Delivery Contracts ("Contracts") providing for payment and
delivery on the date or dates stated in such Prospectus Supplement. Each
Contract will be for an amount not less than, and unless the Company
otherwise agrees the aggregate principal amount of Debt Securities sold
pursuant to Contracts shall be not less nor more than, the respective
amounts stated in such Prospectus Supplement. Institutions with whom
Contracts, when authorized, may be made include commercial and savings
banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and other institutions, but shall
in all cases be subject to the approval of the Company. Contracts will
not be subject to any conditions except the purchase by an institution of
the Debt Securities covered by its Contracts shall not at the time of
delivery be prohibited under the laws of any jurisdiction in the United
States to which such institution is subject. A commission indicated in
the Prospectus Supplement will be paid to underwriters and agents
soliciting purchases of Debt Securities pursuant to Contracts accepted by
the Company.
The place and time of delivery for the Debt Securities in respect
of which this Prospectus is delivered are set forth in the accompanying
Prospectus Supplement.
All Debt Securities will be a new issue of securities with no
established trading market. Any underwriters to whom Debt Securities are
sold by the Company for public offering and sale may make a market in such
Debt Securities, but such underwriters will not be obligated to do so and
may discontinue any market making at any time without notice. No
assurance can be given as to the liquidity of or the trading markets for
any Debt Securities.
LEGAL MATTERS
The validity of the Debt Securities will be passed upon for the
Company by Foley & Lardner, Milwaukee, Wisconsin. Certain legal matters
will be passed upon for the underwriters, dealers, purchasers or agents by
Jones, Day, Reavis & Pogue, Chicago, Illinois. Benjamin F. Garmer, III, a
partner of Foley & Lardner, is a director of the Company.
EXPERTS
The financial statements and schedule included or incorporated by
reference in the Company's Annual Report on Form 10-K for the year ended
December 31, 1994 and its Current Report on Form 8-K dated April 24, 1995,
incorporated by reference in this Prospectus, have been audited by Ernst &
Young LLP, independent auditors, as set forth in their reports thereon
included therein, and incorporated herein by reference. Such financial
statements and schedule are incorporated herein by reference in reliance
upon such reports given upon the authority of such firm as experts in
accounting and auditing.
No dealer, salesperson or other person has been authorized to
give any information or to make any representation not contained
or incorporated by reference in this Prospectus and, if given or
made, such information or representation must not be relied upon
as having been authorized by the Company or any Underwriter.
This Prospectus does not constitute an offer to sell or a
solicitation of an offer to buy any of the securities offered
hereby in any jurisdiction to any person to whom it is unlawful
to make such offer in such jurisdiction. Neither the delivery of
this Prospectus nor any sale made hereunder shall, under any
circumstances, create any implication that the information herein
is correct as of any time subsequent to the date hereof or that
there has been no change in the affairs of the Company since such
date.
_______________________
TABLE OF CONTENTS
Prospectus
Page
Available Information . . . . . . . . . . . . . . . . . . 2
Incorporation of Certain
Documents by Reference . . . . . . . . . . . . . . . . 2
The Company . . . . . . . . . . . . . . . . . . . . . . 4
Use of Proceeds . . . . . . . . . . . . . . . . . . . . 4
Ratios of Earnings to Fixed Charges . . . . . . . . . . . 4
Description of the
Debt Securities . . . . . . . . . . . . . . . . . . . . 5
Foreign Currency Risks . . . . . . . . . . . . . . . . . 16
Plan of Distribution . . . . . . . . . . . . . . . . . . 17
Legal Matters . . . . . . . . . . . . . . . . . . . . . . 18
Experts . . . . . . . . . . . . . . . . . . . . . . . . 18
[LOGO]
$250,000,000
Debt Securities
PROSPECTUS
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The expenses in connection with the issuance and distribution of
the securities covered hereby, other than underwriting and other discounts
and commissions, are, subject to future contingencies, estimated to be as
follows:
Securities and Exchange Commission
registration fee . . . . . . . . . . . . . $ 86,207
Printing and Engraving Expenses . . . . . 65,000
Fees of Rating Agencies . . . . . . . . . . 95,000
Trustee Fees and Expenses . . . . . . . . 36,200
Accounting Fees and Expenses . . . . . . . 40,000
Legal Fees and Expenses . . . . . . . . . . 65,000
Blue Sky Fees and Expenses . . . . . . . . 15,000
Miscellaneous Expenses . . . . . . . . . . 7,593
--------
Total . . . . . . . . . . . . . . . . . . $410,000
========
Item 15. Indemnification of Directors and Officers.
Pursuant to the Wisconsin Business Corporation Law and the
Registrant's By-Laws, directors and officers of the Registrant are
entitled to mandatory indemnification from the Registrant against certain
liabilities and expenses (i) to the extent such officers or directors are
successful in the defense of a proceeding and (ii) in proceedings in which
the director or officer is not successful in defense thereof, unless (in
the latter case only) it is determined that the director or officer
breached or failed to perform his or her duties to the Registrant and such
breach or failure constituted: (a) a willful failure to deal fairly with
the Registrant or its shareholders in connection with a matter in which
the director or officer had a material conflict of interest; (b) a
violation of criminal law unless the director or officer had a reasonable
cause to believe his or her conduct was lawful or had no reasonable cause
to believe his or her conduct was unlawful; (c) a transaction from which
the director or officer derived an improper personal profit; or (d)
willful misconduct. The Wisconsin Business Corporation Law specifically
states that it is the public policy of Wisconsin to require or permit
indemnification, allowance of expenses and insurance in connection with a
proceeding involving securities regulation, as described therein, to the
extent required or permitted as described above. Additionally, under the
Wisconsin Business Corporation Law, directors of the Registrant are not
subject to personal liability to the Registrant, its shareholders or any
person asserting rights on behalf thereof for certain breaches or failures
to perform any duty resulting solely from their status as directors,
except in circumstances paralleling those outlined in (a) through (d)
above.
Expenses for the defense of any action for which indemnification
may be available may be advanced by the Registrant under certain
circumstances.
The indemnification provided by the Wisconsin Business Corporation
Law and the Registrant's By-Laws is not exclusive of any other rights to
which a director or officer of the Registrant may be entitled. The
general effect of the foregoing provisions may be to reduce the
circumstances which an officer or director may be required to bear the
economic burden of the foregoing liabilities and expense.
The Registrant maintains a liability insurance policy for its
directors and officers as permitted by Wisconsin law which may extend to,
among other things, liability arising under the Securities Act of 1933.
The proposed form of Underwriting Agreement for the Debt Securities
contains provisions under which the Underwriters agree to indemnify the
directors and officers of the Registrant against certain liabilities,
including liabilities under the Securities Act of 1933.
Item 16. Exhibits.
The exhibits filed herewith are as specified on the Exhibit Index
included herein.
Item 17. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933.
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than
a 20% change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
Registration Statement.
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the
Registration Statement or any material change to such information
in the Registration Statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the 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 the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933,
each filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 that is incorporated
by reference in the Registration Statement shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of
prospectus filed as part of this Registration Statement in reliance
upon Rule 430A and contained in a form of prospectus filed by the
Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the
Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a
form of prospectus shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
(d) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in
the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit
to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused
this amendment to the Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Fond du Lac,
State of Wisconsin, on August 8, 1995.
GIDDINGS & LEWIS, INC.
By: /s/ Joseph R. Coppola
Joseph R. Coppola
Chairman of the Board and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
amendment to the Registration Statement has been signed below by the
following persons in the capacities and on the dates indicated.
Signature Title Date
/s/ Joseph R. Coppola Chairman of the August 8, 1995
Joseph R. Coppola Board, Chief
Executive Officer and
Director (Principal
Executive Officer)
/s/ Richard C. Vice President - August 8, 1995
Kleinfeldt Finance, Secretary
Richard C. Kleinfeldt and Director
(Principal Financial
and Accounting
Officer)
Albert J. Baciocco, Director August 8, 1995
Jr.*
John A. Becker* Director August 8, 1995
Ruth M. Davis* Director August 8, 1995
Clyde H. Folley* Director August 8, 1995
Benjamin F. Garmer, Director August 8, 1995
III*
John W. Guffey, Jr.* Director August 8, 1995
Ben R. Stuart* Director August 8, 1995
*By: /s/ Joseph R. Coppola
Joseph R. Coppola
Attorney-in-Fact
EXHIBIT INDEX
Exhibit
Number Document Description
(1) Proposed form of Underwriting Agreement relating to
the Debt Securities.*
(4.1) Indenture between Giddings & Lewis, Inc. and
Firstar Trust Company, as Trustee, dated as of
August 7, 1995, relating to the Debt Securities.
(4.2) Credit Agreement among Giddings & Lewis, Inc.,
Giddings & Lewis GmbH, Giddings & Lewis AG, the
Institutions from time to time party thereto as
Lenders, the Institutions from time to time party
thereto as Issuing Banks, Citicorp North America,
Inc., as Agent, and Citicorp Investment Bank
Limited, as London Agent, dated as of December 21,
1992. [Incorporated by reference to Exhibit 4.2 to
Giddings & Lewis, Inc.'s Annual Report on Form 10-K
for the year ended December 31, 1992]
(4.3) Amendment to Credit Agreement among Giddings &
Lewis, Inc., Giddings & Lewis GmbH, Giddings &
Lewis Ltd., the Institutions from time to time
party thereto as Lenders, the Institutions from
time to time party thereto as Issuing Banks,
Citicorp North America, Inc., as Retiring Agent,
and Citibank N.A., as Agent, Citicorp Investment
Bank Limited, as Retiring London Agent, and
Citibank International plc, as an Agent, dated as
of December 21, 1994. [Incorporated by reference
to Exhibit 4.3 to Giddings & Lewis, Inc.'s Annual
Report on Form 10-K for the year ended December 31,
1994]
(4.4) Amendment No. 2 and Consent to Credit Agreement
among Giddings & Lewis, Inc., Giddings & Lewis
GmbH, Giddings & Lewis Ltd. and the Institutions
from time to time party thereto as Agent and
Lenders, dated as of April 24, 1995. [Incorporated
by reference to Exhibit 4.3 to Giddings & Lewis,
Inc.'s Current Report on Form 8-K dated April 24,
1995]
(4.5) Credit Agreement among Giddings & Lewis, Inc., the
Institutions from time to time party hereto as
Lenders and Citibank, N.A., as Agent, dated as of
April 24, 1995. [Incorporated by reference to
Exhibit 4.4 to Giddings & Lewis, Inc.'s Current
Report on Form 8-K dated April 24, 1995]
(5) Opinion of Foley & Lardner (including consent of
counsel).
(12) Statement re computation of ratios of earnings to
fixed charges.*
(23.1) Consent of Ernst & Young LLP.
(23.2) Consent of Foley & Lardner (filed as part of
Exhibit (5)).
(24) Powers of Attorney.*
(25) Form T-1 Statement of Eligibility and Qualification
under the Trust Indenture Act of 1939 of Firstar
Trust Company.*
*Previously filed.