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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 26, 1996
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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THE GOODYEAR TIRE & RUBBER COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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OHIO
(STATE OF INCORPORATION)
34-0253240
(I.R.S. EMPLOYER IDENTIFICATION NUMBER)
1144 EAST MARKET STREET
AKRON, OHIO 44316-0001
(330) 796-2121
(ADDRESS, INCLUDING ZIP CODE AND TELEPHONE NUMBER, OF REGISTRANT'S PRINCIPAL
EXECUTIVE OFFICES)
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C. THOMAS HARVIE, ESQ., VICE PRESIDENT AND GENERAL COUNSEL
THE GOODYEAR TIRE & RUBBER COMPANY
1144 EAST MARKET STREET
AKRON, OHIO 44316-0001
(330) 796-2121
(ADDRESS, INCLUDING ZIP CODE AND TELEPHONE NUMBER, OF AGENT FOR SERVICE)
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COPIES TO:
GERRY V. WITTKAMPER, ESQ. JOHN W. WHITE, ESQ.
THE GOODYEAR TIRE & RUBBER COMPANY CRAVATH, SWAINE & MOORE
1144 EAST MARKET STREET WORLDWIDE PLAZA
AKRON, OHIO 44316-0001 825 EIGHTH AVENUE
NEW YORK, NY 10019-7475
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement.
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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)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: /X/
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT BEING OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PER UNIT OFFERING PRICE FEE
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Debt Securities................... $500,000,000(1) 100% $500,000,000(2) $172,413.80
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(1) Or, if any Debt Securities are issued at original issue discount, such
greater amount as may result in the initial offering prices for Debt
Securities aggregating $500,000,000. Any offering of Debt Securities
denominated in any foreign currencies or foreign currency units will be
treated as the equivalent in U.S. dollars based on the exchange rate
applicable to the purchase of such Debt Securities from the Registrant.
(2) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(a) under the Securities Act of 1933.
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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 THAT SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED MARCH 26, 1996
THE GOODYEAR TIRE & RUBBER COMPANY
DEBT SECURITIES
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The Goodyear Tire & Rubber Company (the "Company") may offer and sell from
time to time debt securities consisting of debentures, notes and/or other
unsecured evidences of indebtedness (the "Debt Securities") in one or more
series at an aggregate initial offering price not to exceed $500,000,000 (or its
equivalent at the time of offering in a non-U.S. dollar currency or a composite
currency or currencies). As used herein, the term Debt Securities shall include
securities denominated, or whose principal is payable, in United States dollars,
or, at the option of the Company, in any other currency or in a composite
currency or currencies or in amounts determined by reference to an index. The
Debt Securities may be offered in separate series in amounts, at prices and on
terms to be determined at the time of offering. The terms of the Debt
Securities, including, where applicable, the specific designation, aggregate
principal amount, denominations, maturity, interest rate or rates (which may be
fixed or variable) and time of payment of interest, if any, terms for redemption
at the option of the Company or the holder, terms for any sinking fund payments,
any listing on a securities exchange, the initial public offering price or
prices and certain other terms of the offering and sale of the Debt Securities
in respect of which this Prospectus is being delivered will be set forth in an
accompanying Prospectus Supplement (the "Prospectus Supplement").
The Debt Securities may be sold to or through underwriters, dealers or
agents or directly to other purchasers. See "Plan of Distribution." The names of
any underwriters, dealers or agents, the principal amounts to be purchased by
any underwriters or dealers acting for their own accounts and the compensation
of such underwriters, dealers or agents will be set forth in the applicable
Prospectus Supplement.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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The date of this Prospectus is , 1996
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NO DEALER, SALESPERSON, OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS OR THE ACCOMPANYING PROSPECTUS SUPPLEMENT AND, IF
GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED BY THE COMPANY OR THE UNDERWRITERS. THIS PROSPECTUS AND
THE PROSPECTUS SUPPLEMENT DO 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 OR THE PROSPECTUS SUPPLEMENT NOR ANY
SALE MADE HEREUNDER OR THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY
IMPLICATION THAT THE INFORMATION HEREIN OR THEREIN 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.
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, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Company with the Commission
pursuant to the informational requirements of the Exchange Act may be inspected
and copied at the public reference facilities maintained by the Commission at
450 Fifth Street, N.W., Washington, D.C. 20549, and at its Regional Offices
located at 230 South Dearborn Street, Chicago, Illinois 60604 and 75 Park Place,
New York, New York 10007. Copies of such material can be obtained, at prescribed
rates, by writing to the Commission, Public Reference Section, at 450 Fifth
Street, N.W., Washington, D.C. 20549. Such material can also be inspected at the
offices of the New York Stock Exchange, 20 Broad Street, New York, New York
10005, The Chicago Stock Exchange, Incorporated, 440 South LaSalle Street,
Chicago, Illinois, and The Pacific Stock Exchange, Incorporated, 115 Sansone
Street, San Francisco, California, on which exchanges shares of the Company's
Common Stock are listed.
The Company has filed with the Commission a registration statement on Form
S-3 relating to the Debt Securities (such registration statement, together with
all amendments, exhibits and schedules, is referred to collectively herein as
the "Registration Statement") under the Securities Act of 1933, as amended (the
"Act"). This Prospectus does not contain all of the information set forth in the
Registration Statement, certain parts of which have been omitted in accordance
with the rules and regulations of the Commission. For further information,
reference is hereby made to the Registration Statement. Copies of the
Registration Statement may be inspected, without charge, at the offices of the
Commission, or obtained at prescribed rates from the Public Reference Section of
the Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C.
20549.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the year ended December 31,
1995 is hereby incorporated by reference into the Registration Statement, of
which this Prospectus is a part, filed with the Commission (File No. 1-1927)
under the Exchange Act.
All documents filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this Prospectus
and prior to the termination of the offering of the Debt Securities shall be
deemed to be incorporated by reference in this Prospectus and to be a part
hereof from the date of filing such documents. Any statement contained in this
Prospectus or in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained herein, or in any
subsequently filed document that also is or is deemed to be incorporated by
reference herein, modifies or supersedes such statement. Any
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statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
The Company hereby undertakes to provide without charge to each person to
whom a copy of this Prospectus is delivered, upon the request of such person, a
copy of any or all of the foregoing documents incorporated herein by reference
(other than exhibits to such documents, unless such exhibits are specifically
incorporated by reference into such documents). Requests for such copies should
be directed to the attention of The Goodyear Tire & Rubber Company, 1144 East
Market Street, Akron, Ohio 44316-0001, Attention: Office of the Secretary
(Telephone number: 330-796-2121).
THE COMPANY
The Goodyear Tire & Rubber Company (the "Company" and, together with its
domestic and foreign subsidiary companies, "Goodyear") is a leading producer of
tires and rubber products. Goodyear manufactures and sells new tires for most
applications in most regions of the world. Goodyear also manufactures and
markets several lines of rubber and reinforced plastic products for the
transportation industry and various industrial and consumer markets and numerous
rubber-related chemicals for various applications, provides automotive repair
and other services and sells various other products. Goodyear's Celeron
subsidiaries engage in various crude oil transportation and related activities,
primarily the operation of the All American Pipeline System, a 1,225 mile crude
oil pipeline extending from two points along the central California coast to
McCamey, Texas.
The Company, an Ohio corporation organized in 1898, maintains its principal
executive offices at 1144 East Market Street, Akron, Ohio 44316-0001. The
Company's telephone number is 330-796-2121.
USE OF PROCEEDS
Unless otherwise indicated in a Prospectus Supplement relating to a series
of Debt Securities, the net proceeds from the sale of the Debt Securities will
be used for general corporate purposes, including, without limitation, to
refinance short-term bank borrowings and other existing indebtedness, future
acquisitions, capital expenditures and working capital. Each Prospectus
Supplement will contain specific information concerning the use of proceeds from
the issue and sale of the Debt Securities offered thereunder.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the Company's ratio of earnings to fixed
charges for the periods indicated:
YEARS ENDED DECEMBER 31, 1995
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1995 1994 1993 1992 1991
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Ratio of Earnings to Fixed Charges.............. 5.31 4.95 4.16 2.97 1.69
For purposes of computing the Ratio of Earnings to Fixed Charges, (a)
"earnings" consist of income before income taxes, extraordinary items and
cumulative effect of accounting changes (plus amortization of capitalized
interest, minority interest in net income of subsidiaries with fixed charges and
the shares of fixed charges of equity investees, minus capitalized interest, the
interests of minorities in subsidiary losses and undistributed earnings of
equity investees), and (b) "fixed charges" include interest expense,
amortization of debt discount and expense, the portion of rents representative
of an interest factor, capitalized interest and the Company's share of fixed
charges of equity investees. If the financing fees associated with the Company's
receivable sales programs were included in fixed charges, the Ratio of Earnings
to Fixed Charges would be 4.68, 4.46, 3.89, 2.80 and 1.62 for the years ended
December 31, 1995, 1994, 1993, 1992 and 1991, respectively.
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DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general terms and provisions
of the Debt Securities to which any Prospectus Supplement may relate. The
particular terms of the series of Debt Securities offered by an accompanying
Prospectus Supplement (the "Offered Debt Securities"), and the extent to which
the following general provisions apply thereto, will be described therein.
The Debt Securities will be issued under an Indenture, dated as of March
15, 1996 (the "Indenture"), between the Company and Chemical Bank, as Trustee
(the "Trustee"), a form of which Indenture is filed as an exhibit to the
Registration Statement. The following summaries of certain provisions of the
Indenture 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, including
the definitions therein. Certain terms defined in the Indenture are capitalized
herein. Wherever capitalized terms are used and not otherwise defined herein, it
is intended that such terms shall have the meanings assigned to them in the
Indenture.
GENERAL
The Indenture limits the aggregate principal amount of the Debt Securities
which may be issued thereunder to $500,000,000. The Indenture does not further
limit the aggregate principal amount of any particular series of Offered Debt
Securities which may be issued thereunder and provides that Debt Securities may
be issued from time to time in series. The Debt Securities will be direct
unsecured obligations of the Company and will rank pari passu in right of
payment with all other unsecured and unsubordinated indebtedness of the Company.
Reference is made to the Prospectus Supplement relating to the Offered Debt
Securities for the following terms or additional provisions thereof, where
applicable: (1) the title of the Offered Debt Securities; (2) any limit on the
aggregate principal amount of the Offered Debt Securities; (3) the price
(expressed as a percentage of the aggregate principal amount thereof) at which
the Offered Debt Securities will be issued; (4) the date or dates on which the
Offered Debt Securities will mature; (5) the rate or rates (which may be fixed
or variable) at which the Offered Debt Securities will bear interest, if any;
(6) the date or dates from which any such interest will accrue, the date on
which payment of such interest will commence, the Interest Payment Dates, the
Regular Record Dates for such Interest Payment Dates, and the Person to whom any
such interest will be payable, if other than the Person in whose name the
Offered Debt Security (or one or more Predecessor Securities) is registered at
the close of business on the Regular Record Date for such interest payment; (7)
the place or places where the principal of (and premium, if any) and interest on
the Offered Debt Securities will be payable; (8) the dates on which and the
price or prices at which the Offered Debt Securities will, pursuant to any
mandatory sinking fund provisions, or may, pursuant to any optional sinking fund
provisions, be redeemed by the Company, and the other detailed terms and
provisions of such sinking funds; (9) the date, if any, after which, and the
price or prices at which, the Offered Debt Securities may, pursuant to any
optional redemption provisions, be redeemed at the option of the Company or of
the Holder thereof and the other detailed terms and provisions of such optional
redemptions; (10) the currency or currencies, including composite currencies, in
which payment of the principal of (and premium, if any) and interest on the
Offered Debt Securities will be payable if other than U.S. dollars; (11) any
index used to determine the amount of payments of principal of (and premium, if
any) or interest on the Offered Debt Securities; (12) the portion of the
principal amount of the Offered Debt Securities, if other than the principal
amount thereof, payable upon acceleration of maturity thereof; (13) the right of
the Company to defease the Offered Debt Securities for purposes of certain
restrictive covenants and certain Events of Default under the Indenture; (14)
whether such Debt Securities will be issued in fully registered form without
coupons or will be issued in the form of one or more global securities in
temporary global form or definitive global form; and (15) any other terms of the
Offered Debt Securities. (Section 3.01)
Unless otherwise provided in the Prospectus Supplement relating to the
Offered Debt Securities, (1) principal of (and premium, if any) and interest on
the Debt Securities will be payable, and the Debt Securities of each series will
be exchangeable and transfers thereof will be registrable, at the Corporate
Trust Office of the Trustee, except that, at the option of the Company, interest
may be paid by mailing a check to
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the address of the Person entitled thereto as it appears in the Security
Register; (2) payment of any interest due on any Debt Security will be made to
the Person in whose name such Debt Security is registered at the close of
business on the Regular Record Date for such interest; and (3) the Debt
Securities will be issued only in fully registered form without coupons and in
denominations of $1,000 or any integral multiples thereof. No service charge
will be made for any transfer or exchange of the Debt Securities, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith. (Sections 3.01, 3.02, 3.05,
3.07 and 10.02)
Debt Securities may be issued as Original Issue Discount Debt Securities to
be sold at a substantial discount from their principal amount. In that event,
special federal income tax, accounting and other considerations applicable
thereto will be described in the Prospectus Supplement rating thereto. "Original
Issue Discount Security" means any Debt Security which provides for an amount
less than the principal amount thereof to be due and payable upon a declaration
of acceleration of the Maturity thereof. (Section 1.01)
The applicable Prospectus Supplement will describe the federal income tax
consequences of the ownership of any Offered Debt Securities denominated in
other than U.S. dollars.
COVENANTS
LIMITATION ON SECURED INDEBTEDNESS. The Company will covenant that it will
not, and will not permit any Restricted Subsidiary (as defined below) to, issue,
assume or guarantee any Secured Indebtedness (as defined below), if such Secured
Indebtedness is secured by a Lien upon Restricted Property (as defined below) of
the Company or a Restricted Subsidiary (as defined below) without securing the
Debt Securities equally and ratably with, or prior to, such Debt Securities. The
limitation on Secured Indebtedness does not apply, however, to: (i) any Lien on
property of any corporation if such Lien is in existence at the time such
corporation becomes a Restricted Subsidiary, (ii) any Lien on Restricted
Property if such Lien is in existence at the time of acquisition by the Company
or a Restricted Subsidiary of such Restricted Property; (iii) any Lien on
Restricted Property to secure the payment of all or any part of the purchase
price (or other acquisition cost) of such Restricted Property or to secure any
indebtedness incurred (prior to, at the time of, or within one year after, the
acquisition by the Company or a Restricted Subsidiary of such Restricted
Property) for the purpose of, or in connection with, financing all or any part
of the purchase price thereof; (iv) any Lien on property of the Company or a
Restricted Subsidiary if such Lien was in existence prior to the time a
corporation is merged into or consolidated with, or prior to the time of a sale,
lease or other disposition of the properties of such corporation as an entirety
or substantially as an entirety to, the Company or a Restricted Subsidiary; (v)
any Lien securing Secured Indebtedness owing by any Restricted Subsidiary to the
Company or another Restricted Subsidiary; (vi) any Lien on Restricted Property
in favor of the United States of America or any State thereof, or any
department, agency or instrumentality or political subdivision of the United
States of America or any State thereof, or in favor of any other country, or any
political subdivision thereof, to secure partial, progress, advance or other
payments, or performance of any other obligations, pursuant to any contract or
statute or to secure any indebtedness incurred for the purpose of financing all
or any part of the purchase price or cost of construction of the Restricted
Property subject to such Lien, including, without limitation, Liens to secure
pollution control bonds or industrial revenue or other types of bonds; (vii) any
Lien on personal property (other than manufacturing equipment); (viii) any
extension, renewal or replacement (or successive extensions, renewals or
replacements), in whole or in part, of any Secured Indebtedness or any Lien
referred to in clauses (i) through (vii), provided that the principal amount of
Secured Indebtedness secured by the Lien shall not exceed the principal amount
of Secured Indebtedness so secured at the time of such extension, renewal or
replacement, and that such extension, renewal or replacement Lien shall be
limited to all or a part of the Restricted Property which secured the Lien so
extended, renewed or replaced (plus improvements on such Restricted Property);
and (ix) Liens on Restricted Property if, immediately after the grant thereof,
the aggregate amount of all Secured Indebtedness secured by Liens that would not
be permitted but for this clause (ix) does not exceed 15% of the Shareholders'
Equity of the Company (as defined below) as at the last day of the then most
recently
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completed fiscal quarter of the Company, as reported on the consolidated balance
sheet of the Company. (Section 10.05.)
LIMITATION ON SALE AND LEASEBACK TRANSACTIONS. The Company will covenant
that it will not, and will not permit any Restricted Subsidiary to, enter into
any lease (except leases for a term of not more than three years and excluding
leases of newly acquired, improved or constructed property) covering any
Restricted Property of the Company or a Restricted Subsidiary owned at March 15,
1996 that is sold to any other person in connection with such lease (a "Sale and
Leaseback Transaction"), unless the Company or such Restricted Subsidiary would
either (a) be entitled, pursuant to the provisions of Section 10.05 of the
Indenture, to incur Secured Indebtedness secured by a Lien on the Restricted
Property to be leased in an amount equal to the Attributable Debt with respect
to such Sale and Leaseback Transaction without equally and ratably securing the
Debt Securities, or (b) the Company or such Restricted Subsidiary applies an
amount equal to the proceeds from the sale of such Restricted Property to the
retirement of any Funded Debt (as defined below) of the Company or such
Restricted Subsidiary within 120 days of the effective date of such Sale and
Leaseback Transaction. This restriction on Sale and Leaseback Transactions does
not, however, prevent the Company or any Restricted Subsidiary from: (i)
entering into any transaction not involving a lease with a term of more than
three years; or (ii) entering into any Sale and Leaseback Transaction if it is
entered into within 180 days after the later of the acquisition, completion of
construction of such property, or the commencement of operation of such
Restricted Property. (Section 10.06)
CERTAIN DEFINITIONS. As used in the Indenture: "Attributable Debt" will
mean the total net amount of rent required to be paid during the remaining term
of the relevant lease, discounted at the rate per annum equal to the lesser of
(i) the prevailing market interest rate at the relevant date, on United States
Treasury obligations having a maturity substantially equal to the average term
of the relevant lease, plus 3%, or (ii) the weighted average interest rate borne
by the Debt Securities then outstanding; "Funded Debt" will mean as any date as
of which any determination thereof is being or to be made, all Indebtedness that
by its terms (i) matures more than one year after the date on which it was so
issued, incurred, assumed or guaranteed by the Company (or a Restricted
Subsidiary), or (ii) matures one year or less after the date it was issued,
incurred, guaranteed or assumed which at such date may be renewed at the sole
election or option of the Company (or a Restricted Subsidiary) so as to mature
more than one year after such date; "Indebtedness" of any person will mean
indebtedness for money borrowed (including capitalized lease obligations and
conditional sales and similar agreements which provide for the deferral of the
payment of the purchase price for property or services for a period in excess of
one year after acceptance of the complete delivery thereof); "Lien" will mean
with respect to any asset, (i) any mortgage, deed of trust, lien, pledge,
encumbrance, charge or security interest in or on such asset, or (ii) the
interest of a vendor or a lessor under any conditional sale agreement, capital
lease or title retention agreement relating to such asset; "Restricted Property"
will mean any manufacturing plant or equipment owned by the Company or a
Restricted Subsidiary which is used primarily to manufacture tires or other
automotive products and is located within any one or more of the States of the
United States of America, but shall not include (i) retread plants, (ii) plants
or equipment which, in the opinion of the Board of Directors of the Company, are
not of material importance to the total business conducted by the Company and
its Subsidiaries as a whole, or (iii) plants, facilities or equipment which, in
the opinion of the Board of Directors of the Company, are used primarily for
transportation, marketing or warehousing; "Restricted Subsidiary" will mean a
subsidiary organized under the laws of any State of the United States of America
engaged primarily in manufacturing tires or other automotive products (i)
substantially all of the assets of which are located within any one or more of
the States of the United States of America, and (ii) which has assets in excess
of 5% of the total consolidated assets of the Company and its consolidated
Subsidiaries (as shown on the then most recent annual or quarterly consolidated
balance sheet of the Company), except that "Restricted Subsidiary" will not
include any subsidiary the principal business of which is financing accounts
receivable, leasing, owning and developing real estate, engaging in
transportation activities, or engaging in distribution or related activities;
"Secured Indebtedness" will mean Indebtedness of the Company or any Restricted
Subsidiary secured a Lien on Restricted Property, but excluding from such
definition all Indebtedness which is (i) outstanding on March 15, 1996 and
secured by Liens existing on that date, or (ii) not Funded Debt; "Shareholders'
Equity" of the Company will mean, the sum of the stated capital, plus capital
surplus, plus Retained Earnings of the Company and its Consolidated Subsidiaries
as set
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forth on the then most recent annual or quarterly consolidated balance sheet;
and "Subsidiary" will mean any corporation more than 50% of the voting stock of
which is owned, directly or indirectly, by the Company and/or one or more other
Subsidiaries of the Company. (Section 1.01)
CONSOLIDATION, MERGER AND SALE OF ASSETS. The Company will covenant that
it will not merge into or consolidate with any other corporation, or sell all or
substantially all of its assets as an entirety to any person (except for cash),
unless (a) the successor is a corporation organized under the laws of the United
States of America or any State thereof, and (b) the successor assumes all the
obligations under the Debt Securities and the Indenture. (Section 8.01). Upon
any such merger, consolidation or sale, the successor will succeed to, and will
be substituted in lieu of, the Company. (Section 8.02).
LEVERAGED TRANSACTIONS AND CHANGES IN CONTROL. Other than the Limitation
on Secured Indebtedness and Limitation on Sale and Leaseback Transactions
covenants described above, the Indenture and the Debt Securities do not contain
any covenants or other provisions designed to afford holders of the Debt
Securities protection in the event of a highly leveraged transaction involving
the Company. The Indenture does not contain provisions requiring redemption of
the Debt Securities by the Company, or adjustment to any terms of the Debt
Securities, upon any change in control of the Company.
EVENTS OF DEFAULT
An Event of Default with respect to Debt Securities of any series is
defined in the Indenture as: (1) default for 30 days in payment of any interest
on any Debt Security of that series; (2) default in payment of principal of (or
premium, if any, on) any Debt Security of that series at Maturity; (3) failure
to deposit any sinking fund payment when due in respect of that series; (4)
failure by the Company for 60 days after due notice in performance of any other
of the covenants or warranties in the Indenture (other than a covenant or
warranty included in the Indenture solely for the benefit of a series of Debt
Securities other than that series); (5) certain events of bankruptcy, insolvency
or reorganization of the Company; and (6) any other Event of Default provided
with respect to Debt Securities of that series. (Section 5.01)
The Indenture provides that, if any Event of Default with respect to Debt
Securities of any series at the time Outstanding occurs and is continuing,
either the Trustee or the Holders of not less than 25% in principal amount of
the Outstanding Debt Securities of that series may declare the principal amount
(or, if any of the Debt Securities of that series are Original Issue Discount
Debt Securities, such portion of the principal amount of such Debt Securities as
may be specified in the terms thereof) of all Debt Securities of that series to
be due and payable immediately, but upon certain conditions such declaration may
be annulled and past defaults (except, unless theretofore cured, a default in
payment of principal of (or premium, if any) or interest on the Debt Securities
of that series and certain other specified defaults) may be waived by the
Holders of a majority in principal amount of the Outstanding Debt Securities of
that series on behalf of the Holders of all Debt Securities of that series.
(Sections 5.02 and 5.13)
Reference is made to the Prospectus Supplement relating to each series of
Offered Debt Securities that consists in whole or in part of Original Issue
Discount Debt Securities for the particular provisions relating to acceleration
of the Maturity of a portion of the principal amount of such Original Issue
Discount Debt Securities upon the occurrence of an Event of Default and the
continuation thereof.
The Indenture provides that the Trustee will, within 90 days after the
occurrence of a default with respect to Debt Securities of any series at the
time Outstanding, give to the Holders of the Outstanding Debt Securities of that
series notice of such default known to it if uncured and not waived, provided
that, except in the case of default in the payment of principal of (or premium,
if any) or interest on any Debt Security of that series, on in the deposit of
any sinking fund payment which is provided, the Trustee will be protected in
withholding such notice if the Trustee in good faith determines that the
withholding of such notice is in the interest of the Holders of the Outstanding
Debt Securities of such series; and, provided further, that in the case of any
default of the character specified in clause (4) under "Events of Default," such
notice shall not be given until at least 30 days after the occurrence thereof.
The term "default" with respect to any series of Outstanding Debt Securities for
the purpose only of this provision means any event which is, or after notice or
lapse of time or both would become, an Event of Default. (Section 6.02)
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The Indenture contains a provision entitling the Trustee, subject to the
duty of the Trustee during default to act with the required standard of care, to
be indemnified by the Holders of any series of Outstanding Debt Securities
before proceeding to exercise any right or power under the Indenture at the
request of the Holders of such series of Debt Securities. (Section 6.03) Subject
to such provisions for indemnification of the Trustee, the Indenture provides
that the Holders of a majority in principal amount of Outstanding Debt
Securities of any series may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee, with respect to the Debt Securities of such
series, provided that the Trustee may decline to act if such direction is
contrary to law or the Indenture. (Section 5.12)
No Holder of any Debt Security of any series will have any right to
institute any proceeding with respect to the Indenture or for any remedy
thereunder, unless: (1) such Holder shall have previously given to the Trustee
written notice of a continuing Event of Default with respect to Debt Securities
of that series, (2) the Holders of at least 25% in principal amount of the
Outstanding Debt Securities of that series shall have made written request, and
offered reasonable indemnity, to the Trustee to institute such proceeding as
trustee, (3) the Trustee shall have failed to institute such proceeding within
60 days and (4) the Trustee shall not have received from the Holders of a
majority in principal amount of the Outstanding Debt Securities of that series a
direction inconsistent with such request during such 60-day period. (Section
5.07) However, the Holder of any Debt Security will have an absolute right to
receive payment of the principal of (and premium, if any) and any interest on
such Debt Security on or after the due dates expressed in such Debt Security and
to institute suit for the enforcement of any such payment. (Section 5.08)
The Indenture includes a covenant that the Company will file annually with
the Trustee a certificate of no default as to certain provisions of the
Indenture, or specifying any default that exists. (Section 10.08)
DEFEASANCE
The Prospectus Supplement will state if any defeasance provision will apply
to the Offered Debt Securities.
DEFEASANCE AND DISCHARGE. The Indenture provides that, if applicable, the
Company will be discharged from any and all obligations in respect of the Debt
Securities of any series (except for certain obligations to register the
transfer or exchange of Debt Securities of such series, to replace stolen, lost
or mutilated Debt Securities of such series, to maintain paying agencies and to
hold monies for payment in trust) upon the deposit with the Trustee, in trust,
of money or U.S. Government Obligations which through the payment of interest
and principal in respect thereof in accordance with their terms will provide
money in an amount sufficient to pay (1) the principal of (and premium, if any)
and each installment of interest on the Debt Securities of such series on the
Stated Maturity of such payments and (2) installments of any sinking fund
payments applicable to the Debt Securities of such series, in accordance with
the terms of the Indenture and the Debt Securities of such series. Such a trust
may only be established if, among other things, the Company has delivered to the
Trustee an Opinion of Counsel (who may be an employee of or counsel for the
Company) to the effect that (1) that Holders of the Debt Securities of such
series will not recognize income, gain or loss for federal income tax purposes
as a result of such deposit, defeasance and discharge and will be subject to
federal income tax on the same amount and in the same manner and at the same
times, as would have been the case if such deposit, defeasance and discharge had
not occurred, or, in lieu of such opinion, the Company delivers to the Trustee a
ruling of the Internal Revenue Service to the same effect, and (2) the Debt
Securities, if then listed on a national securities exchange under the Exchange
Act, would not be delisted as a result of such defeasance. (Sections 13.02 and
13.04)
DEFEASANCE OF CERTAIN COVENANTS AND CERTAIN EVENTS OF DEFAULT. The
Indenture provides that, if applicable, the Company may omit to comply with
certain restrictive covenants in Sections 10.05 and 10.06, and the occurrence
and continuance of an Event of Default under Section 5.01(d) (described in
clause (4) under "Events of Default") shall not be deemed to be an Event of
Default under the Indenture and the Debt Securities of any series, upon the
deposit with the Trustee, in trust, of money or U.S. Government Obligations
which through the payment of interest and principal in respect thereof in
accordance with their terms will
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provide money in an amount sufficient to pay (1) the principal of (and premium,
if any) and each installment of interest on the Debt Securities of such series
on the Stated Maturity of such payments and (2) installments of any sinking fund
payments applicable to the Debt Securities of such series, in accordance with
the terms of the Indenture and the Debt Securities of such series. The
obligations of the Company under the Indenture and the Debt Securities of such
series other than the covenants referred to above and the Events of Default
other than the Events of Default referred to above shall remain in full force
and effect. Such a trust may only be established if, among other things, the
Company has delivered to the Trustee an Opinion of Counsel (who may be an
employee of or counsel for the Company) to the effect that (1) the Holders of
the Debt Securities of such series will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit and defeasance of
certain covenants and Events of Default and will be subject to federal income
tax on the same amount and in the same manner and at the same times, as would
have been the case if such deposit and defeasance had not occurred and (2) the
Debt Securities of such series, if then listed on a national securities exchange
under the Exchange Act, would not be delisted as a result of such defeasance.
(Sections 13.03 and 13.04)
DEFEASANCE AND CERTAIN OTHER EVENTS OF DEFAULT. In the event the Company
exercises its option not to comply with certain covenants of the Indenture with
respect to the Debt Securities of any series as described above and the Debt
Securities of such series are declared due and payable because of the occurrence
of any Event of Default other than an Event of Default described in clause (4)
under "Events of Default," the amount of money and U.S. Government Obligations
on deposit with the Trustee will be sufficient to pay amounts due on the Debt
Securities of such series at the time of their stated maturity, but may not be
sufficient to pay amounts due on the Debt Securities of such series at the time
of the acceleration resulting from such Event of Default. However, the Company
shall remain liable for such payments.
MODIFICATIONS AND WAIVERS OF THE INDENTURE
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the Holders of not less than a majority in principal amount
of Outstanding Debt Securities of each series affected thereby, to execute
supplemental indentures adding any provisions to or changing or eliminating any
of the provisions of the Indenture or modifying the rights of the Holders of
Outstanding Debt Securities of such series, except that no such supplemental
indenture may, without the consent of the Holder of each Outstanding Debt
Security affected thereby, (1) change the Stated Maturity of the principal of,
or any installment of principal of or interest on, any Debt Security, (2) reduce
the principal amount of (or premium, if any) or any interest on any Debt
Security or reduce the amount of principal of an Original Issue Discount
Security that would be due and payable upon acceleration, (3) change the place
or currency of payment of principal of (or premium, if any) or interest on any
Debt Security, (4) impair the right to institute suit for the enforcement of any
payment on or with respect to any Debt Security on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption Date), (5)
reduce the aforesaid percentage in principal amount of Outstanding Debt
Securities of any series, the consent of the Holders of which is required for
any such supplemental indenture or for waiver of compliance with certain
provisions of the Indenture or certain defaults thereunder, or (6) effect
certain other changes. (Section 9.02)
The Holders of at least a majority in principal amount of the Outstanding
Debt Securities of any series may on behalf of the Holders of all Debt
Securities of such series waive, insofar as such series is concerned, compliance
by the Company with certain restrictive provisions of the Indenture. (Section
10.09) The Holders of a majority in principal amount of the Outstanding Debt
Securities of any series may on behalf of the Holders of all Debt Securities of
such series waive any past default under the Indenture with respect to such
series, except a default in the payment of the principal of (or premium, if any)
or any interest on any Debt Security of such series or in respect of a provision
or covenant which under the Indenture cannot be modified or amended without the
consent of the Holder of each Outstanding Debt Security of such series affected
thereby. (Section 5.13)
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BOOK-ENTRY SYSTEM
The provisions set forth below in this section headed "Book-Entry System"
will apply to the Debt Securities of any series if the Prospectus Supplement
relating to such series so indicates.
The Debt Securities of such series will be represented by one or more
global securities (collectively, a "Global Security") registered in the name of
a depositary (the "Depositary") or a nominee of the Depositary identified in the
Prospectus Supplement relating to such series. Except as set forth below, a
Global Security may be transferred, in whole and not in part, only to the
Depositary or another nominee of the Depositary.
Upon the issuance of a Global Security, the Depositary will credit, on its
book-entry registration and transfer system, the respective principal amounts of
the Debt Securities represented by such Global Security to the accounts of
institutions that have accounts with the Depositary or its nominee
("participants"). The accounts to be credited will be designated by the
underwriters, dealers or agents. Ownership of beneficial interests in a Global
Security will be limited to participants or persons that may hold interests
through participants. Ownership of interests in such Global Security will be
shown on, and the transfer of those ownership interests will be effected only
through, records maintained by the Depositary (with respect to participants'
interests) and such participants (with respect to the owners of beneficial
interests in such Global Security). The laws of some jurisdictions may require
that certain purchasers of securities take physical delivery of such securities
in definitive form. Such limits and laws may impair the ability to transfer
beneficial interests in a Global Security.
So long as the Depositary, or its nominee, is the registered holder and
owner of such Global Security, the Depositary or such nominee, as the case may
be, will be considered the sole owner and holder of the related Debt Securities
for all purposes of such Debt Securities and for all purposes under the
Indenture. Except as set forth below, owners of beneficial interests in a Global
Security will not be entitled to have Debt Securities represented by such Global
Security registered in their names, will not receive or be entitled to receive
physical delivery of Debt Securities in definitive form and will not be
considered to be the owners or holders of any Debt Securities under the
Indenture or such Global Security.
Accordingly, each person owning a beneficial interest in a Global Security
must rely on the procedures of the Depositary and, if such person is not a
participant, on the procedures of the participant through which such person owns
its interest, to exercise any rights of a holder of Debt Securities under the
Indenture or such Global Security. The Indenture permits the Depositary to
authorize participants, as its agents, to take any action which the Depositary,
as the holder of a Global Security, is entitled to take under the Indenture or
such Global Security. The Company understands that under existing industry
practice, in the event the Company requests any action of holders of Debt
Securities or an owner of a beneficial interest in a Global Security desires to
take any action that the Depositary, as the holder of such Global Security is
entitled to take, the Depositary would authorize the participants to take such
action, and that the participants would authorize beneficial owners owning
through such participants to take such action or would otherwise act upon the
instructions of beneficial owners owning through them.
Payment of principal of and premium, if any, and interest, if any, on Debt
Securities represented by a Global Security will be made to the Depositary or
its nominee, as the case may be, as the registered owner and holder of such
Global Security.
Upon receipt of any payment of principal, premium, if any, or interest, if
any, in respect of a Global Security, the Depositary will credit immediately
participants' accounts with payments in amounts proportionate to their
respective beneficial interests in the principal amount of such Global Security
as shown on the records of the Depositary. Payments by participants to owners of
beneficial interests in a Global Security held through such participants will be
governed by standing instructions and customary practices, as is the case with
securities held for the accounts of customers in bearer form or registered in
"street name," and will be the responsibility of such participants. The Company
will not have any responsibility or liability for any aspect of the records
relating to, or payments made on account of, beneficial ownership interests in a
Global Security for any Debt Securities or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests or for any
other aspect of the relationship between the Depositary and its participants or
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the relationship between such participants and the owners of beneficial
interests in such Global Security owning through such participants.
Unless and until it is exchanged in whole or in part for Debt Securities in
definitive form, a Global Security may not be transferred except as a whole by
the Depositary to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary.
Debt Securities represented by a Global Security are exchangeable for Debt
Securities in definitive form of like tenor as such Global Security in
denominations of $1,000 and in any greater amount that is an integral multiple
thereof if (i) the Depositary notifies the Company that it is unwilling or
unable to continue as Depositary for such Global Security or if at any time the
Depositary ceases to be a clearing agency registered under the Securities
Exchange Act of 1934, as amended, (ii) the Company in its discretion at any time
determines not to have all of the Debt Securities represented by a Global
Security and notifies the Trustee thereof, or (iii) an Event of Default has
occurred and is continuing with respect to the Debt Securities. Any Debt
Security that is exchangeable pursuant to the preceding sentence is exchangeable
for Debt Securities issuable in authorized denominations and registered in such
names as the Depositary shall direct. Subject to the foregoing, a Global
Security is not exchangeable, except for a Global Security or Global Securities
of the same aggregate denominations to be registered in the name of the
Depositary or its nominee.
SAME-DAY SETTLEMENT AND PAYMENT
Settlement by the purchasers of the Notes will be made in immediately
available funds. All payments by the Company to the Depositary of principal and
interest will be made in immediately available funds.
The Notes will trade in the Depositary's Same-Day Funds Settlement System
until maturity, and therefore the Depositary will require secondary trading
activity in the Notes to be settled in immediately available funds. Secondary
trading in long-term notes and debentures of corporate issuers is generally
settled in clearing-house or next-day funds. No assurance can be given as to the
effect, if any, of settlement in immediately available funds on trading activity
in the Notes.
REGARDING THE TRUSTEE
Chemical Bank is the Trustee under the Indenture. The Company maintains
various banking relationships with the Trustee. Chemical is the agent and a
lender under (i) a Revolving Credit Facility Agreement, dated as of July 15,
1994, whereunder Chemical Bank and 30 other domestic and international banks
have agreed to lend up to $900 million at any time and from time to time through
July 15, 1995, and (ii) a Credit Agreement [364-Day Facility], dated as of July
15, 1994, whereunder Chemical Bank and 29 other domestic and international banks
have agreed to lend up to $294 million at any time and from time to time until
July 12, 1996, when the commitment of each participating bank terminates unless
extended for 364 days on a bank by bank basis or, if not so extended, the
Company may obtain a two year loan from any non-extending bank. Chemical Bank is
also the counterparty to certain interest rate exchange transactions and
performs various other banking services for the Company in the ordinary course
of business. Chemical Bank has received and will receive fees and other
compensation in connection with the aforesaid credit agreements and for such
other transactions and services.
GOVERNING LAW
The Indenture and the Debt Securities will be governed by, and construed in
accordance with, the laws of the State of New York.
PLAN OF DISTRIBUTION
The Company may sell Debt Securities to or through underwriters, dealers or
agents or directly to other purchasers.
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The distribution of Debt Securities may be effected from time to time in
one or more transactions at a fixed price or prices, which may be changed, at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices. Underwriters may sell Debt
Securities to or through dealers.
In connection with the sale of Debt Securities, underwriters may receive
compensation from the Company or from purchasers of Debt Securities for whom
they may act as agents, in the form of discounts, concessions or commissions.
Underwriters may sell Debt Securities to or through dealers, and such dealers
may receive compensation in the form of discounts, concessions or commissions
from the underwriters and/or commissions from the purchasers for whom they may
act as agents. Underwriters, dealers and agents that participate in the
distribution of Debt Securities may be deemed to be underwriters, and any
discounts or commissions received by them from the Company and any profit on the
resale of Debt Securities by them may be deemed to be underwriting discounts and
commissions under the Act. Any such underwriter or agent will be identified, and
any such compensation to be received from the Company will be described, in the
Prospectus Supplement.
Under agreements that may be entered into by the Company, underwriters,
dealers and agents who participate in the distribution of Debt Securities may be
entitled to indemnification by the Company against certain liabilities,
including liabilities under the Securities Act. Underwriters, dealers and agents
may engage in transactions with, or perform services for, the Company and its
subsidiaries in the ordinary course of business and receive fees in connection
therewith.
If so indicated in the Prospectus Supplement, the Company will authorize
underwriters or other persons acting as the Company's agents to solicit offers
by certain institutions to purchase Offered Debt Securities from the Company
pursuant to contracts providing for payment and delivery on a future date.
Institutions with which such contracts may be made include commercial and
savings banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and others, but in all cases such
institutions must be approved by the Company. The obligations of any purchaser
under any such contract will be subject to the condition that the purchase of
the Offered Debt Securities shall not at the time of delivery be prohibited
under the laws of the jurisdiction to which such purchaser is subject. The
underwriters and such other agents will not have any responsibility in respect
of the validity or performance of such contracts.
Each series of Debt Securities will be a new issue of securities with no
established trading market. Unless otherwise specified in a Prospectus
Supplement relating to a series of Debt Securities, the Debt Securities will not
be listed on any securities exchange. 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 that any underwriter will make a market in the Debt Securities of any
series or as to the existence or liquidity of a trading market for the Debt
Securities of any series.
VALIDITY OF DEBT SECURITIES
Unless otherwise indicated in an accompanying Prospectus Supplement
relating to Offered Debt Securities, the validity of the Debt Securities will be
passed upon for the Company by C. Thomas Harvie, Esq., a Vice President and the
General Counsel of the Company, and for the underwriters or agents by Cravath,
Swaine & Moore, Worldwide Plaza, 825 Eighth Avenue, New York, New York 10019.
EXPERTS
The consolidated financial statements of the Company incorporated in this
Prospectus by reference to the Company's Annual Report on Form 10-K for the year
ended December 31, 1995 have been so incorporated in reliance on the report of
Price Waterhouse LLP, independent accountants, given on the authority of said
firm as experts in auditing and accounting.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following list sets forth the expenses (other than underwriting
discounts and commissions) expected to be incurred in connection with the
issuance and distribution of the Debt Securities being registered by this
Registration Statement. All amounts are estimated except the Commission
registration fee.
Commission Registration Fee........................................... $172,413.80
Printing and Engraving Costs.......................................... $ 75,000.00*
Accounting Fees and Expenses.......................................... $ 85,000.00*
Trustee Fees and Expenses............................................. $ 20,000.00*
Legal Fees and Expenses............................................... $ 10,000.00*
Rating Agencies' Fees................................................. $457,500.00*
Blue Sky Fees and Expenses............................................ $ 10,000.00*
Miscellaneous......................................................... $ 30,000.00*
-----------
Total....................................................... $859,913.80
===========
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* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article V of the Code of Regulations of Registrant concerns indemnification
of the Registrant's directors and officers and provides as follows:
INDEMNIFICATION
"The Company shall indemnify each person who is or was a director, officer
or employee of the Company, or of any other corporation which he served as such
at the request of the Company, against any and all liability and reasonable
expense that may be incurred by him in connection with or resulting from any
claim, action, suit or proceeding (whether brought by or in the right of the
Company or such other corporation or otherwise), civil or criminal, or in
connection with an appeal relating thereto, in which he may become involved, as
a party or otherwise, by reason of his being or having been a director, officer,
or employee of the Company or of such other corporation, or by reason of any
past or future action taken or not taken in his capacity as such director,
officer, or employee, whether or not he continues to be such at the time such
liability or expense is incurred, provided such person acted, in good faith, in
what he reasonably believed to be the best interests of the Company or such
other corporation, as the case may be, and, in addition, in any criminal action
or proceeding, had no reasonable cause to believe that his conduct was unlawful.
As used in this Article, the terms "liability" and "expense" shall include, but
shall not be limited to, counsel fees and disbursements and amounts of
judgments, fines, or penalties against, and amounts paid in settlement by, a
director, officer, or employee, other than amounts paid to the Company itself or
to such other corporation served at the Company's request. The termination of
any claim, action, suit, or proceeding, civil or criminal, by judgment,
settlement (whether with or without court approval) or conviction or upon a plea
of guilty or of nolo contendere, or its equivalent, shall not create a
presumption that a director, officer, or employee did not meet the standards of
conduct set forth in the first sentence of this Article. Any such director,
officer, or employee referred to in this Article who has been wholly successful,
on the merits or otherwise, with respect to any claim, action, suit or
proceeding of the character described herein shall be entitled to
indemnification as of right. Except as provided in the preceding sentence, any
indemnification hereunder shall be made at the discretion of the Company, but
only if (1) the Board, acting by a quorum consisting of directors who are not
parties to (or who have been wholly successful with respect to) such claim,
action, suit, or proceeding, shall find that the director, officer, or employee
has met the standards of conduct set forth in the first sentence of
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this Article, or (2) independent legal counsel (who may be the regular counsel
of the Company) shall deliver to it their written advice that, in their opinion,
such director, officer, or employee has met such standards. Expense incurred
with respect to any such claim action, suit, or proceeding may be advanced by
the Company prior to the final disposition thereof upon receipt of an
undertaking by or on behalf of the recipient to repay such amount unless it
shall ultimately be determined that he is entitled to indemnification under this
Article. The rights of indemnification provided in this Article shall be in
addition to any rights to which any person concerned may otherwise be entitled
by contract or as a matter of law, and shall inure to the benefit of their
heirs, executors, and administrators of any such person."
Indemnification also may be made available by Registrant to its directors,
officers, employees and agents, and may be available as a matter of right, under
Section 1701.13(E) of the Ohio Revised Code. Section 1701.13(E) of the Ohio
Revised Code provides as follows:
"(E)(1) A corporation may indemnify or agree to indemnify
any person who was or is a party, or is threatened to be made a
party, to any threatened, pending, or completed action, suit, or
proceeding, whether civil, criminal, administrative, or
investigative, other than an action by or in the right of the
corporation, by reason of the fact that he is or was a director,
officer, employee, or agent of the corporation, or is or was
serving at the request of the corporation as a director,
trustee, officer, employee, member, manager, or agent of another
corporation, domestic or foreign, nonprofit or for profit, a
limited liability company, or a partnership, joint venture,
trust, or other enterprise, against expenses, including
attorney's fees, judgments, fines, and amounts paid in
settlement actually and reasonably incurred by him in connection
with such action, suit, or proceeding, if he acted in good faith
and in a manner he reasonably believed to be in or not opposed
to the best interests of the corporation, and, with respect to
any criminal action or proceeding, if he had no reasonable cause
to believe his conduct was unlawful. The termination of any
action, suit, or proceeding by judgment, order, settlement, or
conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did
not act in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation,
and, with respect to any criminal action or proceeding, he had
reasonable cause to believe that his conduct was unlawful.
(2) A corporation may indemnify or agree to indemnify any
person who was or is a party, or is threatened to be made a
party, to any threatened, pending, or completed action or suit
by or in the right of the corporation to procure a judgment in
its favor, by reason of the fact that he is or was a director,
officer, employee, or agent of the corporation, or is or was
serving at the request of the corporation as a director,
trustee, officer, employee, member, manager, or agent of another
corporation, domestic or foreign, nonprofit or for profit, a
limited liability company, or a partnership, joint venture,
trust, or other enterprise, against expenses, including
attorney's fees, actually and reasonably incurred by him in
connection with the defense or settlement of such action or
suit, if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
corporation, except that no indemnification shall be made in
respect of any of the following:
(a) Any claim, issue, or matter as to which such person is
adjudged to be liable for negligence or misconduct in the
performance of his duty to the corporation unless, and only to
the extent that, the court of common pleas or the court in which
such action or suit was brought determines, upon application,
that, despite the adjudication of liability, but in view of all
the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses as the court
of common pleas or such other court shall deem proper;
(b) Any action or suit which the only liability asserted
against a director is pursuant to Section 1701.95 of the Revised
Code.
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(3) To the extent that a director, trustee, officer,
employee, member, manager, or agent has been successful on the
merits or otherwise in defense of any action, suit, or
proceeding referred to in division (E)(1) or (2) of this
section, or in defense of any claim, issue, or matter therein,
he shall be indemnified against expenses, including attorney's
fees, actually and reasonably incurred by him in connection with
the action, suit, or proceeding.
(4) Any indemnification under division (E)(1) or (2) of
this section, unless ordered by a court, shall be made by the
corporation only as authorized in the specific case, upon a
determination that indemnification of the director, trustee,
officer, employee, member, manager, or agent is proper in the
circumstances because he has met the applicable standard of
conduct set forth in division (E)(1) or (2) of this section.
Such determination shall be made as follows:
(a) By a majority vote of a quorum consisting of directors
of the indemnifying corporation who were not and are not parties
to or threatened with the action, suit, or proceeding referred
to in division (E)(1) or (2) of this section;
(b) If the quorum described in division (E)(4)(a) of this
section is not obtainable or if a majority vote of a quorum of
disinterested directors so directs, in a written opinion by
independent legal counsel other than an attorney, or a firm
having associated with it an attorney, who has been retained by
or who has performed services for the corporation or any person
to be indemnified within the past five years;
(c) By the shareholders;
(d) By the court of common pleas or the court in which the
action, suit, or proceeding referred to in division (E)(1) or
(2) of this section was brought.
Any determination made by the disinterested directors under
division (E)(4)(a) or by independent legal counsel under
division (E)(4)(b) of this section shall be promptly
communicated to the person who threatened or brought the action
or suit by or in the right of the corporation under division
(E)(2) of this section, and, within ten days after receipt of
such notification, such person shall have the right to petition
the court of common pleas or the court in which such action or
suit was brought to review the reasonableness of such
determination.
(5)(a) Unless at the time of a director's act or omission
that is the subject of an action, suit, or proceeding referred
to in division (E)(1) or (2) of this section, the articles or
the regulations of a corporation state, by specific reference to
this division, that the provisions of this division do not apply
to the corporation and unless the only liability asserted
against a director in an action, suit, or proceeding referred to
in division (E)(1) or (2) of this section is pursuant to section
1701.95 of the Revised Code, expenses, including attorney's
fees, incurred by a director in defending this action, suit, or
proceeding shall be paid by the corporation as they are
incurred, in advance of the final disposition of the action,
suit, or proceeding, upon receipt of an undertaking by or on
behalf of the director in which he agrees to do both of the
following:
(i) Repay such amount if it is proved by clear and
convincing evidence in a court of competent jurisdiction that
his action or failure to act involved an act or omission
undertaken with deliberate intent to cause injury to the
corporation or undertaken with reckless disregard for the best
interests of the corporation;
(ii) Reasonably cooperate with the corporation concerning
the action, suit, or proceeding.
(b) Expenses, including attorney's fees, incurred by a
director, trustee, officer, employee, member, manager, or agent
in defending any action, suit, or proceeding referred to in
division (E)(1) or (2) of this section, may be paid by the
corporation as they are
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17
incurred, in advance of the final disposition of the action,
suit, or proceeding, as authorized by the directors in the
specific case, upon receipt of an undertaking by or on behalf of
the director, trustee, officer, employee, member, manager, or
agent to repay such amount, if it ultimately is determined that
he is not entitled to be indemnified by the corporation.
(6) The indemnification authorized by this section shall
not be the exclusive of, and shall be in addition to, any other
rights granted to those seeking indemnification under the
articles, the regulations, any agreement, a vote of shareholders
or disinterested directors, or otherwise, both as to action in
their official capacities and as to action in another capacity
while holding their offices or positions, and shall continue as
to a person who ceased to be a director, trustee, officer,
employee, member, manager, or agent and shall inure to the
benefit of their heirs, executors, and administrators of such a
person.
(7) A corporation may purchase and maintain insurance or
furnish similar protection, including, but not limited to, trust
funds, letters of credit, or self-insurance, on behalf of or for
any person who is or was a director, officer, employee, or agent
of the corporation, or is or was serving at the request of the
corporation as a director, trustee, officer, employee, member,
manager, or agent of another corporation, domestic or foreign,
nonprofit or for profit, a limited liability company, or a
partnership, joint venture, trust or other enterprise, against
any liability asserted against him and incurred by him in any
such capacity, or arising out of his status as such, whether or
not the corporation would have the power to indemnify him
against such liability under this section. Insurance may be
purchased from or maintained with a person in which the
corporation has a financial interest.
(8) The authority of a corporation to indemnify persons
pursuant to division (E)(1) or (2) of this section does not
limit the payment of expenses as they are incurred,
indemnification, insurance, or other protection that may be
provided pursuant to divisions (E)(5), (6), and (7) of this
section. Divisions (E)(1) and (2) of this section do not create
any obligation to repay or return payments made by the
corporation pursuant to division (E)(5), (6), or (7).
(9) As used in division (E) of this section, "corporation"
includes all constituent entities in a consolidation or merger
and the new or surviving corporation, so that any person who is
or was a director, officer, employee, trustee, member, manager,
or agent of such a constituent entity, or is or was serving at
the request of such constituent entity as a director, trustee,
officer, employee, member, manager, or agent of another
corporation, domestic or foreign, nonprofit or for profit, a
limited liability company, or a partnership, joint venture,
trust, or other enterprise, shall stand in the same position
under this section with respect to the new or surviving
corporation as he would if he had served the new or surviving
corporation in the same capacity."
Registrant maintains and pays the premiums on contracts insuring Registrant
(with certain exclusions) against any liability to directors and officers it may
incur under the above provisions for indemnification and insuring each director
and officer of Registrant (with certain exclusions) against liability and
expense, including legal fees, which he or she may incur by reason of his or her
relationship to Registrant, even if Registrant does not have the obligation or
right to indemnify such director or officer against such liability or expense.
Reference is made to Section 7 of the form of Underwriting Agreement, filed
as Exhibit 1.1 to this Registration Statement, for the Registrant's and the
Underwriters' respective agreements to indemnify each other against certain
civil liabilities, including liabilities under the Securities Act, and to
provide contribution in circumstances where indemnification is available.
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18
ITEM 16. EXHIBITS.
EXHIBIT EXHIBIT
ITEM NUMBER DESCRIPTION
- ------- ------- ------------------------------------------------------------------------
1 1.1 Form of Underwriting Agreement.
4 4.1(A) Certificate of Amended Articles of Incorporation of Registrant, dated
December 20, 1954, and Certificate of Amendment to Amended Articles of
Incorporation of Registrant, dated April 6, 1993 (two documents
comprising Registrant's Articles of Incorporation as amended to date).
4.1(B) Code of Regulations, adopted November 22, 1955, and amended April 5,
1965, April 7, 1980, April 6, 1981 and April 13, 1987.
4.2 Form of Indenture, dated as of March 15, 1996, between Registrant and
Chemical Bank.
5 5.1 Opinion of C. Thomas Harvie, Esq., Vice President and General Counsel of
Registrant, as to the validity of the Debt Securities being offered.
12 12.1 Computation of Ratios of Earnings to Fixed Charges.
23 23.1 The consent of Price Waterhouse LLP, independent accountants, to the
incorporation by reference in this Registration Statement on Form S-3 of
their report dated February 1, 1996 appearing at page 30 of Registrant's
Annual Report on Form 10-K for the year ended December 31, 1995.
23.2 The consent of C. Thomas Harvie, Esq., Vice President and General
Counsel of Registrant, is included in his opinion filed as Exhibit 5.1
to this Registration Statement.
24 24.1 Power of Attorney, dated January 9, 1996, authorizing Robert W. Tieken,
C. Thomas Harvie, Richard W. Hauman, George E. Strickler and James
Boyazis, or any one of them, to sign this Registration Statement on
behalf of the Registrant and certain of the directors and officers of
Registrant.
25 25.1 Statement of Eligibility of Chemical Bank on Form T-1 relating to the
Indenture, dated as of March 14, 1996, between Registrant and Chemical
Bank.
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
change in volume and price represent no more than a 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table set forth in the effective registration
statement; and
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement, including (but not limited to) any addition or deletion of a
managing underwriter;
provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii) do not
apply if the Registration Statement is on Form S-3 or Form S-8, and 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
II-5
19
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 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 (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.
C. 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.
D. 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 a
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.
II-6
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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 Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Akron, State of Ohio, on the 25th day of March, 1996.
THE GOODYEAR TIRE & RUBBER COMPANY
By: /s/ ROBERT W. TIEKEN
------------------------------------
Robert W. Tieken,
Executive Vice President
and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
SIGNATURE TITLE DATE
- --------------------------------- ----------------------- -----------------------------------
Samir F. Gibara.................. President and Chief
Executive Officer and a
Director (Principal
Executive Officer)
George E. Strickler.............. Vice President and By: /s/ ROBERT W. TIEKEN
Comptroller (Principal -----------------------------------
Accounting Officer) Robert W. Tieken
John G. Breen.................... Director Signing individually as Executive
William E. Butler................ Director Vice President (Principal Financial
Thomas H. Cruikshank............. Director Officer) of Registrant and as
Stanley C. Gault................. Director Attorney-in-Fact for the directors
William J. Hudson, Jr............ Director and officers whose names appear
Gertrude G. Michelson............ Director opposite
Steven A. Minter................. Director
Agnar A. Pytte................... Director March 25, 1996
George H. Schofield.............. Director
William C. Turner................ Director
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21
INDEX OF EXHIBITS
EXHIBIT EXHIBIT
ITEM NUMBER DESCRIPTION
- ------- ------ -------------------------------------------------------------------------
1 1.1 Form of Underwriting Agreement.
4 4.1(A) Certificate of Amended Articles of Incorporation of Registrant, dated
December 20, 1954, and Certificate of Amendment to Amended Articles of
Incorporation of Registrant, dated April 6, 1993 (two documents
comprising Registrant's Articles of Incorporation as amended to date).
4.1(B) Code of Regulations, adopted November 22, 1955, and amended April 5,
1965, April 7, 1980, April 6, 1981 and April 13, 1987.
4.2 Form of Indenture, dated as of March 15, 1996, between Registrant and
Chemical Bank.
5 5.1 Opinion of C. Thomas Harvie, Esq., Vice President and General Counsel of
Registrant, as to the validity of the Debt Securities being offered.
12 12.1 Computation of Ratios of Earnings to Fixed Charges.
23 23.1 The consent of Price Waterhouse LLP, independent accountants, to the
incorporation by reference in this Registration Statement on Form S-3 of
their report dated February 1, 1996 appearing at page 30 of Registrant's
Annual Report on Form 10-K for the year ended December 31, 1995.
23.2 The consent of C. Thomas Harvie, Esq., Vice President and General Counsel
of Registrant, is included in his opinion filed as Exhibit 5.1 to this
Registration Statement.
24 24.1 Power of Attorney, dated January 9, 1996, authorizing Robert W. Tieken,
C. Thomas Harvie, Richard W. Hauman, George E. Strickler and James
Boyazis, or any one of them, to sign this Registration Statement on
behalf of the Registrant and certain of the directors and officers of
Registrant.
25 25.1 Statement of Eligibility of Chemical Bank on Form T-1 relating to the
Indenture, dated as of March 14, 1996, between Registrant and Chemical
Bank.