As filed with the Securities and Exchange Commission on June 4, 1999
Registration No. 333-79041
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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Borg-Warner Security Corporation
(Exact name of registrant as specified in its charter)
Delaware 13-3408028
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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200 South Michigan Avenue
Chicago, Illinois 60604
(312) 322-8500
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
------------------------
Robert E. T. Lackey
Vice President, General Counsel and Secretary
Borg-Warner Security Corporation
200 South Michigan Avenue
Chicago, Illinois 60604
(312) 322-8500
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies to:
Charles S. Whitman, III
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
(212) 450-4000
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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, check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(c) under the Securities Act, please check the following box
and list the Securities Act registration number of the earlier effective
registration statement for the same offering. |_|________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|__________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
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, as amended or until the Registration Statement shall
================================================================================
We will amend and complete the information in this prospectus. We may not sell
any of these securities or accept your offer to buy any of them until the
documentation filed with the SEC relating to these securities has been declared
"effective" by the SEC. This prospectus is not an offer to sell these securities
or our solicitation of your offer to buy these securities in any State or other
jurisdiction where that would not be permitted or legal.
SUBJECT TO COMPLETION, DATED JUNE 4, 1999
PROSPECTUS
, 1999
5,850,000 Shares
Borg-Warner Security Corporation
Common Stock
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This prospectus relates to the sale of up to 5,850,000 shares of common
stock, par value $.01 per share, of Borg-Warner Security Corporation by several
of our existing shareholders.
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The common stock is listed on the New York Stock Exchange under the symbol
"BOR". On June 3, 1999, the last sale price of the common stock was $157/8 per
share.
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Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
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TABLE OF CONTENTS
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Page
----
About this Prospectus..........................................................3
Where You Can Find More Information............................................3
Special Note Regarding Forward-Looking Statements..............................4
Use of Proceeds................................................................4
Borg-Warner Security Corporation...............................................4
Market for Borg-Warner's Common Stock and Dividend Policy......................4
Description of Capital Stock...................................................5
Selling Shareholders...........................................................8
Plan of Distribution...........................................................9
Legal Matters.................................................................10
Experts.......................................................................10
2
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission utilizing a "shelf" registration process.
Under this shelf process, the selling shareholders named in this prospectus may
sell up to 5,850,000 shares of common stock from time to time. Each time any of
these selling shareholders sells common shares, we will provide a prospectus
supplement that will contain specific information about the terms of that
offering. The prospectus supplement may also add, update or change information
contained in this prospectus. You should read both this prospectus and any
prospectus supplement together with the additional information described under
the heading "Where You Can Find More Information".
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the Securities and Exchange Commission. Our SEC filings are
available to the public over the Internet at the SEC's web site at
http://www.sec.gov. You may also read and copy any document we file at the SEC's
public reference rooms in Washington, D.C., New York, New York and Chicago,
Illinois. Please call the SEC at 1-800-SEC-0330 for further information on the
public reference rooms. You may also read and copy these documents at the
offices of the New York Stock Exchange, 20 Broad Street, New York, New York
10005.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus, and information that we file later with
the SEC will automatically update and supersede this information. We incorporate
by reference the documents listed below and any future filings we make with the
SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of
1934 until the selling shareholders sell all of the securities covered by this
prospectus:
o Annual Report on Form 10-K for the year ended December 31, 1998
o Quarterly Report on Form 10-Q for the quarter ended March 31, 1999
You may request a copy of these filings, at no cost, by writing or
telephoning us at our principal executive offices at the following address:
Borg-Warner Security Corporation
200 South Michigan Avenue
Chicago, Illinois 60604
Attention: Corporate Secretary
Tel: (312) 322-8500
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different information. Neither we nor the
selling shareholders are making an offer of these securities in any state where
the offer is not permitted. You should not assume that the information in this
prospectus or any prospectus supplement is accurate as of any date other than
the date on the front of these documents.
We have also filed or incorporated by reference exhibits with the
registration statement. You should read the exhibits carefully for provisions
that may be important to you.
3
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
We are designating any statements in this prospectus that are not
historical facts as "forward-looking statements" for the purpose of the safe
harbor provided by Section 21E of the Exchange Act and Section 27A of the
Securities Act. These forward-looking statements are necessarily estimates
reflecting the best judgment of our senior management and involve a number of
risks and uncertainties that could cause actual results to differ materially
from those suggested by the forward-looking statements. Such forward-looking
statements should, therefore, be considered in light of the risk, uncertainties
and other information listed in Exhibit 99 to our annual report on Form 10-K
incorporated into this prospectus. See "Where You Can Find More Information."
USE OF PROCEEDS
We will not receive any proceeds from the sale of these shares.
BORG-WARNER SECURITY CORPORATION
We are the largest independent provider of physical security and related
outsourced security services in North America. As a result of our significant
market presence, breadth of product offerings and strategic alliances, we are
well positioned to service local, multi-location and national accounts and
provide total security solutions to our customers.
We provide guard services, as well as background screening, contract
employment and investigative services, to approximately 14,000 clients in the
United States, Canada, United Kingdom and Colombia. We service these clients
with approximately 73,000 employees in approximately 300 offices under the Wells
Fargo(R), Burns(R), Globe(R) and other service marks.
On May 4, 1999, we announced that, subject to shareholder approval, we
plan to change our name to Burns International Services Corporation.
Our headquarters is at 200 South Michigan Avenue, Chicago, Illinois 60604,
where our telephone number is (312) 322-8500.
MARKET FOR BORG-WARNER'S COMMON STOCK AND DIVIDEND POLICY
As of April 30, 1999, there were approximately 150 holders of record of
the common stock.
We have neither paid nor declared any cash dividends on our common stock
during the last two years. The payment of dividends by us is prohibited under
the terms of some of our debt instruments. We currently intend to retain
earnings for acquisitions, working capital, capital expenditures, general
corporate purposes and reduction of outstanding indebtedness. Accordingly, we do
not expect to be able to nor do we expect to pay cash dividends in the
foreseeable future.
High and low closing sales prices (as reported on the New York Stock
Exchange composite tape) for the common stock for each quarter during 1997 and
1998 and through June 3, 1999 were:
Quarter Ended High Low
------------- ---------- --------
1997 March 31 $ 15 1/8 $ 10 1/8
June 30 18 13 3/4
September 19 9/16 16 1/8
4
Quarter Ended High Low
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December 31 19 3/4 15 1/4
1998 March 31 19 7/16 15 5/16
June 30 24 3/4 17 7/8
September 30 23 1/16 13 1/4
December 31 20 1/16 13 1/16
1999 March 31 20 9/16 14 11/16
June 30 (through June 3) 18 7/8 15 1/2
DESCRIPTION OF CAPITAL STOCK
The following table shows our authorized and outstanding capital stock at
April 30, 1999:
Number of Shares Number of Shares
---------------- ----------------
Common Stock.......................... 50,000,000 23,981,816
Non-Voting Common Stock............... 25,000,000 0
Preferred Stock....................... 5,000,000 0
In addition, as of April 30, 1999, we had issued options to purchase
2,685,400 shares of common stock. On April 19, 1999, we agreed to buy-back
4,350,000 shares of the common stock from several of the selling shareholders.
See "Selling Shareholders".
Common Stock
The common stock and non-voting common stock have the same terms except
for voting rights and some of the conversion features described below.
Each share of common stock entitles the holder to one vote in the election
of directors and all other matters submitted to a vote of our shareholders.
Holders of common stock do not have cumulative voting rights. The non-voting
common stock has no voting rights, except when required by law or when a
proposed amendment to our certificate of incorporation would adversely affect
the special rights, powers or preferences of the non-voting common stock.
Holders of shares of common stock and non-voting common stock, treated as
a single class, are entitled to receive cash dividends when, as and if declared
by our board of directors out of funds legally available for the payment of
dividends. However, we do not expect to pay cash dividends in the forseeable
future. In addition, some of our debt instruments restrict our ability to pay
dividends on our capital stock. If we issue any preferred stock, the holders of
that preferred stock will be entitled to receive their dividends before any
dividends are paid on shares of common stock and non-voting common stock.
Since some of our institutional shareholders are subject to regulatory
requirements that forbid or limit their right to own our voting stock, our
certificate of incorporation allows those shareholders to convert their common
stock into non-voting common stock on a share-for-share basis to comply with
regulatory requirements. Thereafter, these investors can reconvert their
non-voting common stock into common stock on a share-for-share basis in
connection with the sale, distribution or other disposition of their shares in a
transaction meeting the requirements specified in the certificate of
incorporation and to the extent permitted by regulatory requirements.
5
If we are liquidated, each share of common stock and non-voting common
stock, treated as a single class, will share equally in any assets available for
distribution after payment in full of all other claims on our assets, including
any liquidation preference payable to holders of any preferred stock outstanding
at the time of liquidation.
Holders of shares of common stock and non-voting common stock have no
preemptive rights to purchase additional shares of any class of our capital
stock or any other securities of ours. All of the outstanding shares of common
stock and non-voting common stock are fully paid and non-assessable.
The transfer agent for the common stock is The Bank of New York.
Preferred Stock
Our certificate of incorporation authorizes our board of directors to
establish one or more series of preferred stock to determine the terms and
rights of that series, including
o the designation of that series
o the number of shares of that series, including any right of the
board of directors to increase or decrease that number
o the dividend rate of that series and whether dividends will be
cumulative or non-cumulative
o dividend payment dates
o any redemption rights and redemption prices, including any
provisions for a sinking fund
o whether the shares of that series will be convertible into any
other security of our company or any other company, and the terms
and conditions of any conversion, including the conversion price
or conversion rate
o any restrictions on issuance of shares of the same series or any
other class or series
o any voting rights
The board of directors can issue authorized shares of preferred stock and
common stock without any further action by the stockholders, except when
stockholder action is required by applicable law or the rules of any stock
exchange or automated quotation system on which our securities are listed or
traded.
Although our board of directors has no intention at the present time of
doing so, it could issue a series of preferred stock that could, depending on
the terms of that series, impede the completion of a merger, tender offer or
other takeover attempt. The board of directors will decide to issue any shares
of preferred stock based on its judgment as to the best interests of our company
and its stockholders. However, it is possible that an issuance of preferred
stock may discourage an acquisition attempt or other transaction that some, or a
even a majority, of our stockholders believe to be in their best interests or in
which stockholders might receive a premium for their stock over the then current
market price of the stock.
The Delaware General Corporation Law
Our company is a Delaware corporation subject to Section 203 of the
Delaware General Corporation Law. Section 203 provides, in general, that a
corporation may not engage in any business combination with any "interested
stockholder" for a three-year period following the date that person becomes an
interested stockholder unless
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o the board of directors approves the business combination or the
transaction which resulted in the person becoming an interested
stockholder prior to the time the person becomes an interested
stockholder
o upon consummation of the transaction which results in the person
becoming an interested stockholder, the interested stockholder
owns at least 85% of the voting stock of the corporation
outstanding at the time the transaction commenced or
o on or after the date the person becomes an interested stockholder,
the business combination is approved by the board of directors and
the affirmative vote of at least 662/3% of the outstanding voting
stock not owned by the interested stockholder.
An interested stockholder is generally defined to mean any person who is
the owner of 15% or more of the outstanding voting stock of the corporation or
any affiliate or associate of that person. Section 203 may make it more
difficult for an "interested stockholder" to effect a business combination with
our company for a three-year period unless the stockholders elect to exclude our
company from the provisions of Section 203.
Certificate of Incorporation and Bylaws
Our certificate of incorporation and bylaws contain some provisions that
could make an acquisition of our company by means of a tender offer or proxy
contest more difficult. Some of these provisions include:
Classified Board. Our board of directors is divided into three classes. As
a result, approximately one-third of the board of directors is elected each
year, making it more difficult for stockholders to change the composition of the
board. The bylaws provide that the total number of directors will be fixed by a
majority of the board of the directors, but cannot consist of more than
seventeen or less than three directors. In addition, under our certificate of
incorporation, vacancies on the board will be filled by an affirmative vote of a
majority of the remaining directors, even if they make up less than a quorum. If
we issue any preferred stock, and that preferred stock has the right to elect
directors, the provisions described in this paragraph may be modified.
Removal of Directors. Under our certificate of incorporation and bylaws,
directors can be removed only for cause and only by the affirmative vote of the
holders of at least 80% of the outstanding voting stock, voting as a single
class.
Stockholder Action. Stockholders can only take action at annual or
special meetings of stockholders and cannot take action through written consents
in lieu of a meeting. The bylaws provide that special meetings of stockholders
can be called only by the board of directors pursuant to a resolution adopted by
three or more directors. Stockholders cannot call a special meeting or order the
board of directors to call a special meeting. In addition, the only business
that can be conducted at a special meeting of stockholders is the business
specified in the notice of meeting given by the board of directors.
Advance Notice Procedures. The Bylaws establish a stockholder notice
procedure for stockholders to make nominations of candidates for election as
directors or bring other business before an annual meeting of shareholders. The
only nominations or other business proposed by stockholders that will be
considered at an annual meeting are those for which proper notice has been
given. In general, notice has to be given no more than 90 days and no less than
60 days prior to the first anniversary of the previous year's annual meeting,
except when the meeting is advanced by more than 20 days or delayed by more than
60 days. If the meeting is so advanced or delayed or if the meeting is a special
meeting, then notice has to be given no earlier than 90 days before the meeting
and not later than the later of (i) 60 days prior to the meeting and (ii) 10
days after public announcement of the meeting.
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Amendment. The certificate of incorporation provides that the affirmative
vote of at least 80% of the outstanding voting stock, voting as a single class,
is required to amend the provisions described above relating to prohibition of
stockholder action without a meeting, the number, election and term of the
directors, and the removal of the directors. In addition, the bylaws can be
amended by the vote of the board of the directors or the holders of at least 80%
of the outstanding voting stock, voting as a single class.
Further Information
In addition to the above summary, you should refer to our certificate of
incorporation and bylaws, which we have filed as exhibits to our annual report
on Form 10-K, for other provisions that may be important to you. See
"Where You Can Find More Information".
SELLING SHAREHOLDERS
The shares being offered by this prospectus may be offered by the
shareholders listed below or by pledgees, donees, transferees or other
successors in interest that receive the shares as a gift, partnership
distribution or other non-sale related transfer.
Percentage of
Outstanding
Shares Owned Stock prior to Shares
prior to Share Share Buy- Shares Sold Maximum Owned
Buy-back and back and the In Share Amount After the
Name the Offering Offering Buy-back Offered Offering**
- ---- -------------- -------------- ----------- ------- ----------
Merrill Lynch KECALP L.P. 1986.................... 40,000 * -- 40,000 0
Merrill Lynch KECALP L.P. 1987.................... 200,000 * -- 200,000 0
Merchant Banking L.P. No. I....................... 500,000 2.1% 263,317 236,683 0
ML Venture Partners II, L.P....................... 500,000 2.1% -- 500,000 0
Merrill Lynch Capital Appreciation Partnership
No. VIII, L.P.................................. 6,628,615 27.7% 3,490,856 3,137,759 0
ML Offshore LBO Partnership No. VIII.............. 168,524 * 88,751 79,773 0
ML Employees LBO Partnership No. I, L.P........... 164,779 * 86,778 78,001 0
ML IBK Positions, Inc............................. 1,998,082 8.4 420,298 1,577,784 0
---------- ---- --------- ---------
10,200,000 42.7% 4,350,000 5,850,000 0
========== ==== ========= ========= =
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* Represents less than one percent.
** Assuming all the shares are sold.
On April 19, 1999, we entered into a stock purchase agreement with
Merchant Banking L.P. No. I, Merrill Lynch Capital Appreciation Partnership No.
VIII, L.P., ML Offshore LBO Partnership No. VIII, ML Employees LBO Partnership
No. I, L.P. and ML IBK Positions, Inc. pursuant to which we agreed to buy back
4,350,000 shares of our common stock from those selling shareholders at a
purchase price of $18.375 per share, subject to our obtaining necessary consents
from our lending banks and holders of our outstanding senior subordinated notes.
The stock purchase agreement may be terminated by either the selling
shareholders or us if the closing does not occur by July 20, 1999.
The selling shareholders may sell all or part of the shares covered by
this prospectus and as a result no estimate can be given as to the number of
shares that will be held by any selling shareholder upon the termination of any
offering made by this prospectus.
8
The selling shareholders acquired the shares being offered by this
prospectus in connection with a leveraged buy-out of our predecessor company in
1987. In 1993, we completed our initial public offering, including the listing
of our shares on the New York Stock Exchange. As indicated above, on April 19,
1999 we agreed to purchase 4,350,000 shares of our common stock, and to use
commercially reasonable efforts to file a registration statement with the SEC to
enable the selling shareholders to sell their remaining shares in one or more
transactions. We expect to execute a registration rights agreement in connection
with the closing of the share purchase.
Messrs. Burke, Fitzgibbons and Michas, three of our directors, are also
directors of Merrill Lynch Capital Partners Inc., which manages Merrill Lynch
Capital Appreciation Partnership No. VIII, L.P. and ML Offshore LBO Partnership
No. VIII. Pursuant to the stock purchase agreement, one of these three directors
will resign from our board on the first anniversary of the closing of the share
purchase, and the other two on the second and third anniversaries, respectively.
PLAN OF DISTRIBUTION
The selling shareholders (and donees, transferees or other successors in
interest that receive shares from a selling shareholder as a gift, partnership
distribution or other non-sale related transfer) may distribute the shares
covered by this prospectus from time to time in one or more of the following
transactions:
o through brokers, acting as principal or agent, in transactions (which
may involve block transactions) on the New York Stock Exchange, in the
over-the-counter market or through private sales or special offerings
o to underwriters who will acquire the shares for their own account and
resell them in one or more transactions
o to lenders, if the selling shareholders have pledged shares as
collateral to secure loans, credit or other financing arrangements and
the creditor forecloses on the shares
o put or call options written by the selling shareholders on the shares
o short sales of shares or
o any other legally available means.
The price at which any of the shares are sold in any of the transactions
described above will be negotiated at the time of transaction and may be based
on the market price of the shares at that time.
Underwriters or other agents participating in an offering made pursuant to
this prospectus (as amended or supplemented from time to time) may receive
underwriting discounts and commissions under the Securities Act, and they may
allow or reallow discounts or concessions to other dealers. Brokers or agents
participating in transactions described by this prospectus may receive brokerage
or agent's commissions or fees. The selling shareholders may sell shares to or
through broker-dealers who may receive compensation in the form of discounts,
concessions or commissions from the selling shareholders and/or the purchasers
of the shares and that compensation might be in excess of customary commissions.
At the time a particular offering of any shares is made with this
prospectus, to the extent required by law, we will prepare and deliver a
prospectus supplement setting forth the amount of shares being offered and the
terms of the offering, including the purchase price or public offering price,
the name or names of any underwriters, dealers or agents, the purchase price
paid by any underwriter for any shares purchased from the selling shareholders,
any
9
discounts, commissions and other items constituting compensation from the
selling shareholders and any discounts, commissions or concessions allowed or
filed or paid to dealers.
We have been advised that, as of the date hereof, the selling shareholders
have made no arrangement with any broker for the sale of their shares. The
selling shareholders and any underwriters, brokers or dealers involved in the
sale of the shares may be considered "underwriters" as that term is defined by
the Securities Act, although the selling shareholders disclaim such status. We
may agree in the registration rights agreement or in an underwriting agreement
to indemnify the selling shareholders, their officers, directors, partners, and
agents, any underwriter and each person or entity who controls such selling
shareholder or underwriter, against certain liabilities which may be incurred in
connection with the sale of the shares under this prospectus. In addition, the
selling shareholders may agree to indemnify us against certain liabilities. The
registration rights agreement or underwriting agreement may also provide for
rights of contribution if indemnification is not available.
If Merrill, Lynch, Pierce, Fenner & Smith Incorporated, an affiliate of
some of the selling shareholders, participates in any offering of our shares,
that offering will be conducted in compliance with Section 2720 of the Conduct
Rules of the National Association of Securities Dealers, Inc.
LEGAL MATTERS
Davis Polk & Wardwell, New York, New York will pass upon the validity of
the shares of common stock for us. Arthur F. Golden, one of our directors, is a
partner of Davis Polk & Wardwell.
EXPERTS
The financial statements and the related financial statement schedule
incorporated in this prospectus by reference from our Annual Report on Form 10-K
for the year ended December 31, 1998, have been audited by Deloitte & Touche
LLP, independent auditors, as stated in their reports, which are incorporated
herein by reference, and have been so incorporated in reliance upon the reports
of such firm given upon their authority as experts in accounting and auditing.
10
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuances and Distribution
The following table sets forth the fees and expenses payable by the
Registrant in connection with the issuance and distribution of the securities
other than underwriting discounts and commissions.
Securities and Exchange Commission registration fee........... $ 28,206
Blue Sky fees and expenses.................................... 3,000*
Printing expense.............................................. 50,000*
Accounting fees and expenses.................................. 75,000*
Legal fees and expenses....................................... 125,000*
National Association of Securities Dealers Inc. filing fee.... 10,646
Miscellaneous................................................. 18,148*
-------
Total.................................................... $310,000*
=======
- --------------------
* Estimated.
Item 15. Indemnification of Directors and Officers
Reference is made to Section 102(b)(7) of the Delaware General Corporation
Law (the "DGCL"), which enables a corporation in its original certificate of
incorporation or an amendment thereto to eliminate or limit the personal
liability of a director for violations of the director's fiduciary duty, except
(i) for any breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) pursuant to Section
174 of the DGCL (providing for liability of directors for the unlawful payment
of dividends or unlawful stock purchases or redemptions) or (iv) for any
transaction from which a director derived an improper personal benefit.
Section 145 of the DGCL empowers the Company to indemnify, subject to the
standards set forth therein, any person in connection with any action, suit or
proceeding brought before or threatened by reason of the fact that the person
was a director, officer, employee or agent of such company, or is or was serving
as such with respect to another entity at the request of such company. The DGCL
also provides that the Company may purchase insurance on behalf of any such
director, officer, employee or agent.
Our Amended and Restated Certificate of Incorporation provides in effect
for the indemnification by us of each of our directors and officers to the
fullest extent permitted by applicable law.
Item 16. Exhibits
Exhibit
No. Description
- ------- -----------
4.1 Registration Rights Agreement dated as of July 27, 1987
4.2 Form of Stock Purchase Agreement Amendment
5.1 Opinion of Davis Polk & Wardwell
23.1 Consent of Deloitte & Touche LLP*
23.2 Consent of Davis Polk & Wardwell (included in Exhibit 5.1)
24.1 Powers of Attorney (included on the signature page of the
Registration Statement)*
- --------------------
* Previously filed.
Item 17. Undertakings
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.
(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 the undertakings set forth in paragraph (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 with or furnished to the Commission by the registrants pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in this 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 the registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
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 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, 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 in Item 15 above or
otherwise, the registrant has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the Securities Act
of 1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction in the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
II-2
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Borg-Warner
Security Corporation 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 amendment to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Chicago, State of Illinois, on June 4,
1999.
BORG-WARNER SECURITY CORPORATION
By: /s/ Timothy M. Wood
------------------------------
Name: Timothy M. Wood
Title: Vice President, Finance
Pursuant to the Requirements of the Securities Act of 1933, this registration
statement amendment has been signed by the following persons in the capacities
and on the dates indicated.
Signature Title Date
--------- ----- ----
* Chairman of the Board, Chief June 4, 1999
- ------------------------- Executive Officer and President
John A. Edwardson (Principal Executive Officer)
/s/ Timothy M. Wood Vice President, Finance (Principal June 4, 1999
- ------------------------- Financial and Accounting Officer)
Timothy M. Wood
/s/ J. Joe Adorjan Director June 4, 1999
- -------------------------
J. Joe Adorjan
* Director June 4, 1999
- -------------------------
James J. Burke, Jr.
* Director June 4, 1999
- -------------------------
Albert J. Fitzgibbons, III
* Director June 4, 1999
- -------------------------
Arthur F. Golden
* Director June 4, 1999
- -------------------------
Dale W. Lang
* Director June 4, 1999
- -------------------------
Robert A. McCabe
II-3
Signature Title Date
--------- ----- ----
* Director June 4, 1999
- -------------------------
Andrew McNally IV
* Director June 4, 1999
- -------------------------
Alexis P. Michas
Director June 4, 1999
- -------------------------
H. Norman Schwarzkopf
* Director June 4, 1999
- -------------------------
Donald C. Trauscht
- ------------
* /s/ Timothy M. Wood
---------------------
Timothy M. Wood
Attorney-in-fact
II-4
EXHIBIT INDEX
Exhibit
No. Description
- ------- -----------
4.1 Registration Rights Agreement dated as of July 27, 1987
4.2 Form of Stock Purchase Agreement Amendment
5.1 Opinion of Davis Polk & Wardwell
23.1 Consent of Deloitte & Touche LLP*
23.2 Consent of Davis Polk & Wardwell (included in Exhibit 5.1)
24.1 Powers of Attorney (included on the signature page of the
Registration Statement)*
- ------------
* Previously filed.
E-1