Registration No. 333-16135
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
AMENDMENT NO. 1 TO
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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THE MEAD CORPORATION
(Exact name of registrant as specified in its charter)
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Ohio 31-0535759
(State or other jurisdiction of (I.R.S. Employer
Incorporation or organization) Identification No.)
Mead World Headquarters
Courthouse Plaza Northeast
Dayton, Ohio 45463
937-495-6323
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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David L. Santez, Esq.
Assistant Secretary
The Mead Corporation
Mead World Headquarters
Courthouse Plaza Northeast
Dayton, Ohio 45463
937-495-6323
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copy to:
Vincent J. Pisano, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
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Robert W. Reeder, Esq.
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Approximate date of proposed sale to the public: From time to time
after the effective date of this Registration Statement as determined in
light of market conditions and other factors.
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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. |_|
The registrant hereby amends this Registration Statement on such
date or dates as may be necessary to delay its effective date until the
registrant shall file a further amendment which specifically states that
this Registration Statement shall thereafter become effective in
accordance with Section 8(a) of the Securities Act of 1933 or until the
Registration Statement shall become effective on such date as the
Commission, acting pursuant to said Section 8(a), may determine.
STATEMENT PURSUANT TO RULE 429
The prospectus contained in this Registration Statement is a
combined prospectus which also covers $300,000,000 aggregate principal
amount of Debt Securities previously registered under Registration
Statements Nos. 33-51337 and 33-43994 and not issued. In the event any
such previously registered debt securities are offered prior to the
effective date of this Registration Statement, they will not be included
in the prospectus contained in this Registration Statement.
[FLAG]
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 JANUARY 10, 1997
$850,000,000
THE MEAD CORPORATION
Debt Securities
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The Mead Corporation (the "Company") may from time to time offer
up to $850,000,000 aggregate initial offering price (or the foreign
currency equivalent thereof) of its unsecured debentures, notes or other
evidences of indebtedness ("Securities"). The Securities may be offered
as separate series in amounts, at prices and on terms to be determined at
the time of sale and to be set forth in supplements to this Prospectus.
The accompanying prospectus supplement or supplements (each, a
"Prospectus Supplement") set forth specifically with regard to the series
of these Securities with respect to which this Prospectus is being
delivered: (i) the aggregate principal amount of Securities offered; (ii)
the rate and time of payment of interest, if any, (iii) authorized
denominations; (iv) the maturity; (v) the public offering price; (vi) any
terms for redemption at the option of the Company or the holder; (vii)
any currency or composite currency, if other than United States dollars,
in which the Securities are denominated or in which interest thereon is
payable; (viii) whether the Securities being offered will be issued in
registered form without coupons, in bearer form with coupons attached or
in the form of one or more global securities; (ix) any index used to
determine the amounts of payments of principal and any premium or
interest; (x) the underwriter, underwriters or agents, if any, for the
Securities being offered, the principal amounts, if any, to be purchased
by the underwriter, underwriters or agents, their compensation and the
resulting net proceeds to the Company; (xi) the designation of the
Trustee acting under the applicable Indenture; and (xii) any other terms
in connection with the offering and sale of the Securities.
The Company may sell Securities to or through underwriters, and
also may sell Securities directly to other purchasers or through agents.
See "Plan of Distribution."
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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 , 1997.
No person has been authorized to give any information or to make
any representations other than those contained in or incorporated by
reference in any Prospectus Supplement or this Prospectus and, if given
or made, such information or representations must not be relied upon as
having been authorized. Neither this Prospectus nor the accompanying
Prospectus Supplement constitutes an offer to sell or a solicitation of
an offer to buy any securities other than the securities to which it
relates or an offer to sell or the solicitation of an offer to buy such
securities in any circumstances in which such offer or solicitation is
unlawful. Neither the delivery of this Prospectus nor the accompanying
Prospectus Supplement, nor any sale hereunder or thereunder shall, under
any circumstances, create any implication that there has been no change
in the affairs of the Company since the date hereof or that the
information contained herein is correct as of any time subsequent to the
dates thereof.
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission
(the "Commission") Registration Statements under the Securities Act of
1933, as amended (the "1933 Act"), with respect to the Securities offered
hereby. This Prospectus does not contain all the information set forth in
the Registration Statements, certain parts of which are omitted in
accordance with the rules and regulations of the Commission. For further
information with respect to the Company and the Securities offered
hereby, reference is hereby made to such Registration Statements,
including the exhibits filed as part thereof.
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 and information statements and
other information with the Commission. The Registration Statements (with
exhibits) as well as such reports, proxy and information statements and
other information can be inspected and copied at the offices of the
Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549; and at the Commission's Regional Offices at 7
World Trade Center, 13th Floor, New York, New York 10048; and
Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661-2511. Copies of such material can be obtained from the
Public Reference Section of the Commission at Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549 at prescribed rates. The Commission
also maintains a Web site at http://www.sec.gov that contains reports,
proxy statements and other information. The Company's common stock is
listed on the New York Stock Exchange, the Chicago Stock Exchange and the
Pacific Stock Exchange. Such reports, proxy and information statements
and other information concerning the Company also may be inspected at the
offices of the New York Stock Exchange, Inc., 20 Broad Street, New York,
New York 10005; the Chicago Stock Exchange, 440 South LaSalle Street,
Chicago, Illinois; and the Pacific Stock Exchange, Inc., 301 Pine Street,
San Francisco, California.
DOCUMENTS INCORPORATED BY REFERENCE
The Company's Annual Report on Form 10-K with respect to the
Company's fiscal year ended December 31, 1995, as amended, the Company's
Quarterly Reports on Form 10-Q with respect to the quarterly periods
ended March 31, 1996, June 30, 1996 and September 29, 1996 and the
Company's Current Reports on Form 8-K filed October 11, 1996, November 5,
1996 and November 13, 1996, each as filed pursuant to Section 13 or 15(d)
of the Exchange Act, are incorporated herein by reference. All documents
filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of
the Exchange Act after the date hereof and prior to the termination of
the offering of the Securities shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing of such
documents.
Any statement contained herein or in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Prospectus to the extent that
a statement contained herein or in any other subsequently filed document
which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Company will provide without charge to each person, including
any beneficial owner, to whom this Prospectus is delivered, on the
written or oral 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 herein). Written or telephone requests should be directed to
David L. Santez, Assistant Secretary, The Mead Corporation, Courthouse
Plaza Northeast, Dayton, Ohio 45463, (937) 495-6323.
THE COMPANY
The Company manufactures and sells paper, pulp, paperboard,
lumber and other wood products. The Company also manufactures and
distributes school and office supplies, distributes paper and other
industrial supplies.
The Company was incorporated in 1930 under the laws of the State
of Ohio as the outgrowth of a paper manufacturing business founded in
1846, and has its principal executive offices at Mead World Headquarters,
Courthouse Plaza Northeast, Dayton, Ohio 45463, telephone (937) 495-6323.
Except as otherwise indicated by the context, the terms "Company" or
"Mead" as used herein refer to The Mead Corporation and its subsidiaries.
USE OF PROCEEDS
Except as otherwise set forth in a Prospectus Supplement, the net
proceeds to be received by the Company from the sale of the Securities
will be added to working capital and will be available for general
corporate purposes, which may include repayment of indebtedness. Pending
such application, a portion of the net proceeds may be invested in
marketable securities.
The Company anticipates that it may, from time to time, incur
additional indebtedness through issuances in the public and private
market.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed
charges of the Company for the periods indicated. The ratios of earnings
to fixed charges for the years ended December 31, 1991-1995 have been
derived from audited financial statements.
PERIOD ENDED YEAR ENDED DECEMBER 31
SEPTEMBER 29, 1996 1995 1994 1993 1992 1991
Ratio of Earnings to Fixed Charges (1) 4.7 6.3 2.1 2.3 1.2 1.2
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(1) For the purpose of this ratio, earnings have been calculated by
adding earnings from continuing operations before income taxes,
the Company's share of earnings (loss) from investees before
income taxes, interest and debt expense, amortization of
capitalized interest and the portion of rental payments deemed to
be interest. Fixed charges consist of interest and debt
expense, capitalized interest and the portion of rental payments
deemed to be interest.
DESCRIPTION OF SECURITIES
The Securities offered hereby will be issued under one or more
separate indentures entered into, or to be entered into, between the
Company and a trustee to be selected by the Company, which shall be any
of Bankers Trust Company, The First National Bank of Chicago or such
other trustee designated by the Company and set forth in the appropriate
Prospectus Supplement. The Company has issued $411,000,000 aggregate
principal amount of Securities (of which $86,000,000 aggregate principal
amount is outstanding as of the date of this Prospectus) under an
Indenture, dated as of July 15, 1982, as amended and supplemented,
between the Company and Bankers Trust Company, and may issue additional
Securities under such indenture in the future. The Company has issued
$300,000,000 aggregate principal amount of Securities (all of which are
outstanding as of the date of this Prospectus) under an Indenture dated
as of February 1, 1993 between the Company and The First National Bank of
Chicago, and may issue additional Securities under such indenture in the
future. Each of the indentures referred to above has substantially
identical terms and is referred to herein as the "Indenture," and each of
Bankers Trust Company, The First National Bank of Chicago and any other
trustee designated by the Company is referred to herein as the "Trustee."
The Trustee selected for a particular series of Securities will be set
forth in the appropriate Prospectus Supplement.
The Securities will be issued in registered form without coupons
("Registered Securities"), in bearer form with coupons attached ("Bearer
Securities") or in the form of one or more temporary or permanent global
securities ("Global Securities"). The Securities will be direct
obligations of the Company, but will not be secured by any mortgage,
pledge or other lien. Except as otherwise indicated herein, all
references in this section to the "Company" refer only to The Mead
Corporation and not to its subsidiaries.
The Indenture provides that additional series of notes,
debentures or other evidences of indebtedness may be issued thereunder
without limitation as to aggregate principal amount.
General
Reference is made to the Prospectus Supplement for the following
terms of the series of the Securities being offered thereby: (i) the
aggregate principal amount of Securities offered; (ii) the rate, time and
place of payment of interest, if any; (iii) authorized denominations;
(iv) the maturity; (v) the public offering price; (vi) any currency or
composite currency, if other than United States dollars, in which the
Securities are denominated or in which principal, interest and premium,
if any, thereon is payable; (vii) whether the Securities will be issued
as Registered Securities, Bearer Securities or both; (viii) whether such
Securities are to be issued in whole or in part in the form of one or
more Global Securities, and, if so, the identity of the Depositary for
such Global Securities; (ix) if a temporary Global Security is to be
issued with respect to Securities issuable as Bearer Securities, whether
any interest thereon payable on an interest payment date prior to the
issuance of definitive Bearer Securities will be paid to any clearing
association holding such Global Security and the terms and conditions
upon which such interest will be credited to the accounts of the persons
entitled thereto on such interest payment date, if other than as
specified herein; (x) if a temporary Global Security is to be issued with
respect to Securities issuable as Bearer Securities, the terms upon which
interests in any temporary Global Security may be exchanged for interests
in a permanent Global Security or definitive Securities; (xi) any special
provisions for the payment of additional amounts with respect to such
Securities; (xii) any index used to determine the amounts of payments of
principal and any premium or interest; (xiii) the period or periods
within which, the price or prices at which and the terms and conditions
on which any of such Securities may be redeemed, in whole or in part, at
the option of the Company; (xiv) the obligation, if any, of the Company
to redeem or purchase any of such Securities pursuant to any sinking fund
or analogous provision or at the option of the holder thereof, and the
period or periods within which, the price or prices at which and the
terms and conditions on which any of such Securities will be redeemed or
purchased, in whole or in part, pursuant to any such obligation; (xv) if
other than the entire principal amount thereof, the portion of the
principal amount of any of such Securities which will be payable upon
declaration of acceleration of the Maturity thereof; (xvi) if the
principal amount payable at the Stated Maturity of any of such Securities
will not be determinable as of any one or more dates prior to the Stated
Maturity, the amount which will be deemed to be such principal amount as
of any such date for any purpose, including the principal amount thereof
which will be due and payable upon any Maturity other than the Stated
Maturity or which will be deemed to be outstanding as of any such date
(or, in any such case, the manner in which such deemed principal amount
is to be determined); (xvii) if applicable, that such Securities, in
whole or any specified part, are defeasible pursuant to the provisions
described under "Defeasance and Covenant Defeasance"; (xviii) the
underwriter, underwriters or agents, if any, for the Securities being
offered, the principal amounts, if any, to be purchased by the
underwriter, underwriters or agents, their compensation and the resulting
net proceeds to the Company; (xix) the Trustee under the Indenture
pursuant to which the Securities offered hereby are to be issued; (xx)
the deferral of interest payments through the extension of the interest
payment period, if any, for the Securities being offered; and (xxi) any
other terms in connection with the offering and sale of the Securities.
The Securities will be unsecured and will rank pari passu with
all other unsecured and unsubordinated indebtedness of the Company.
The statements under this heading are summaries of certain
provisions of the Indenture, a copy of which has been filed with the
Commission. References in parentheses are to sections of the Indenture.
Whenever particular provisions of the Indenture or terms defined therein
are referred to, such provisions or definitions are incorporated by
reference as a part of the statements made, and the statements are
qualified in their entirety by such reference.
Unless the Prospectus Supplement relating thereto specifies
otherwise, Registered Securities denominated in U.S. dollars will be
issued only in denominations of $1,000 or any integral multiple thereof
and Bearer Securities denominated in U.S. dollars will be issued only in
the denomination of $5,000. One or more Global Securities will be issued
in a denomination or aggregate denominations equal to the aggregate
principal amount of Outstanding Securities of the series to be
represented by such Global Security or Securities. The Prospectus
Supplement relating to a series of Securities denominated in a foreign or
composite currency will specify the denomination thereof. Unless
otherwise set forth in a Prospectus Supplement, principal, premium and
interest, if any, will be payable, and the Securities will be
transferable (in the case of Registered Securities) and exchangeable
without service charge at the Corporate Trust Office of the Trustee.
Bearer Securities will be transferable by delivery.
At the option of the holder upon request confirmed in writing,
and subject to the terms of the Indenture, Bearer Securities (with all
unmatured coupons, except as provided below) of any series will be
exchangeable into an equal aggregate principal amount of Registered
Securities (if the Securities of such series are issuable as Registered
Securities), but no Bearer Security will be delivered in or to the United
States, and Registered Securities of any series (other than a Global
Security, except as set forth below) will be exchangeable into an equal
aggregate principal amount of Registered Securities of the same series
(with the same interest rate and maturity date) of different authorized
denominations. If a holder surrenders Bearer Securities in exchange for
Registered Securities between a Regular Record Date or a Special Record
Date, and the relevant Interest Payment Date, such holder will not be
required to surrender the coupon relating to such Interest Payment Date.
Except as provided in a Prospectus Supplement, Registered Securities may
not be exchanged for Bearer Securities. (Section 305)
Securities may be issued under the Indenture as Original Issue
Discount Securities to be offered and sold at a substantial discount from
the principal amount thereof or may have payments denominated in or
determined by reference to a currency other than United States dollars.
If Securities of either type are offered, the special federal income tax,
accounting and other considerations applicable thereto will be described
in the Prospectus Supplement relating thereto. "Original Issue Discount
Security" means any security which provides for an amount less than the
principal amount thereof to be due and payable upon the declaration of
acceleration of the maturity thereof pursuant to an Event of Default and
the continuation thereof.
Unless otherwise indicated in a Prospectus Supplement, the
covenants contained in the Indenture and the Securities would not
necessarily afford holders of the Securities protection in the event of a
highly leveraged or other transaction involving the Company that may
adversely affect holders. In the event that any Securities include
repurchase provisions, if any such repurchase would constitute a tender
offer as defined under the Exchange Act, the Company will comply with the
requirements of Rule 14e-1 and any other tender offer rules under the
Exchange Act which then may be applicable.
Global Securities
The Securities of a series may be issued in whole or in part in
the form of one or more Global Securities that will be deposited with or
on behalf of a depositary located in the United States (a "U.S.
Depositary") or a Common Depositary located outside the United States (a
"Common Depositary") identified in the Prospectus Supplement relating to
such series. Global Securities may be issued in either registered or
bearer form and in either temporary or permanent form.
The specific terms of the depositary arrangement with respect to
any Securities of a series will be described in the Prospectus Supplement
relating to such series. The Company anticipates that the following
provisions will apply to all depositary arrangements.
Book-Entry Securities. Unless otherwise specified in an
applicable Prospectus Supplement, Securities which are to be represented
by a Global Security to be deposited with or on behalf of a U.S.
Depositary will be represented by a Global Security registered in the
name of such depositary or its nominee. Upon issuance of a Global
Security in registered form, the U.S. Depositary of such Global Security
will credit, on its book-entry registration and transfer system, the
respective principal amounts of the Securities represented by such Global
Security to the accounts of institutions that have accounts with such
depositary or its nominee ("participants"). The accounts to be credited
shall be designated by the underwriters or agents of such Securities or
by the Company, if such Securities are offered and sold directly by the
Company. Ownership of beneficial interests in such Global Securities will
be shown on, and the transfer of that ownership will be effected only
through, records maintained by the U.S. Depositary (with respect to
participants' interests) or its nominee for such Global Security or by
participants or persons that hold through participants. The laws of some
jurisdictions require that certain purchasers of securities take physical
delivery of such securities in definitive form. Such laws may impair the
ability to transfer beneficial interests in a Global Security.
So long as the U.S. Depositary for a Global Security in
registered form, or its nominee, is the registered owner of such Global
Security, such depositary or such nominee, as the case may be, will be
considered the sole owner or holder of the Securities represented by such
Global Security for all purposes under the Indenture. Except as set forth
below, owners of beneficial interests in such Global Securities will not
be entitled to have Securities of the series represented by such Global
Security registered in their names, will not receive or be entitled to
receive physical delivery of Securities of such series in definitive form
and will not be considered the owners or holders thereof under the
Indenture.
Principal, premium, if any, and interest payments on Global
Securities registered in the name of or held by a U.S. Depositary or its
nominee will be made to the U.S. Depositary or its nominee, as the case
may be, as the registered owner or the holder of the Global Security
representing such Securities. None of the Company, the Trustee, any
Paying Agent or the Security Registrar for such Securities will 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 such Securities or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
The Company expects that the U.S. Depositary for Securities of a
series, upon receipt of any payment of principal, premium or interest in
respect of a Global Security, 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 such Depositary. The Company also expects that
payments by participants to owners of beneficial interests in such Global
Security held through such participants will be governed by standing
instructions and customary practices, as is now 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.
Unless and until it is exchanged in whole or in part for
Securities in definitive form in accordance with the Indenture and the
terms of the Securities, a Global Security may not be transferred except
as a whole by the U.S. Depositary for such Global Security to a nominee
of such depositary or by a nominee of such depositary to such depositary
or another nominee of such depositary or by such depositary or any such
nominee to a successor of such depositary or a nominee of such successor.
If a U.S. Depositary for Securities in registered form is at any time
unwilling or unable to continue as depositary or if at any time such
Depositary ceases to be a clearing agency registered under the Exchange
Act, and a successor depositary is not appointed by the Company within
ninety days, the Company will issue Securities in definitive registered
form in exchange for the Global Security or Securities representing such
Securities. In addition, the Company may at any time and in its sole
discretion determine not to have any Securities in registered form
represented by one or more Global Securities and, in such event, will
issue Securities in definitive registered form in exchange for all Global
Securities representing such Securities. Further, if an event of default,
or an event which, with the giving of notice or lapse of time, or both,
would constitute an event of default, under the Indenture occurs and is
continuing with respect to the Securities of a series, the U.S.
Depositary may exchange a Global Security representing Securities of such
series for Securities of such series in definitive registered form. In
any such instance, an owner of a beneficial interest in a Global Security
will be entitled to physical delivery in definitive form of Securities of
the series represented by such Global Security equal in principal amount
to such beneficial interest and to have such Securities registered in its
name.
Bearer Securities. Unless otherwise specified in an applicable
Prospectus Supplement, all Bearer Securities of a series will initially
be issued in the form of a single temporary Global Security, to be
deposited with a Common Depositary in London for First Trust of New York,
N.A., as successor to Morgan Guaranty Trust Company of New York, Brussels
Office, as operator of the Euroclear System ("Euroclear Operator") or
Cedel Bank, Societe Anonyme ("CEDEL") for credit to the designated
accounts. Following the availability of a permanent Global Security or
definitive forms of Bearer Securities and subject to any further
limitations described in the applicable Prospectus Supplement, interests
in a temporary Global Security will be exchanged for definitive Bearer
Securities or for interests in a permanent Global Security, with or
without interest coupons, having the same interest rate and Stated
Maturity, but in each such case upon the receipt of written certification
to the effect that such Security is owned by (i) a person that is not a
U.S. person (as defined below) or (ii) a U.S. person that is (A) a
foreign branch of a United States financial institution within the
meaning of Section 1.165-12(c)(1)(v) of the United States Treasury
Regulations acquiring for its own account or for resale, or (B) a U.S.
person who acquired the Securities through a foreign branch of such a
United States financial institution and who holds the Securities through
such financial institution on the date of such certification, and in
either case the financial institution has agreed to comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue
Code of 1986, as amended (the "Code"), and the regulations thereunder or
(iii) is such a United States or foreign financial institution purchasing
for offer to resell or for resale during the 40-day period following the
date of issuance of a Security (the "restricted period") and such
financial institution certifies that it has not acquired the Securities
for purposes of resale directly or indirectly to a U.S. person or to a
person within the United States. A financial institution, whether or not
described in (i) or (ii) above, that purchases a Security for purposes of
resale during the restricted period, may only give the certification
described in (iii) above. In the case of a Security in permanent global
form such certification must be given before the notation of a beneficial
owner's interest therein in connection with the original issuance of such
Security. Except as provided in the next succeeding paragraph, beneficial
interests in a temporary Global Security must be exchanged for definitive
Bearer Securities or for interests in a permanent Global Security before
interest payments can be received. The beneficial owner of an interest in
a temporary Global Security or a permanent Global Security, on or after
the applicable exchange date and upon the notice specified in the
Prospectus Supplement to the Trustee given through the Euroclear Operator
or CEDEL, may exchange its interest for definitive Bearer Securities or
definitive Registered Securities (if such series includes Registered
Securities) of any authorized denomination. No Bearer Security (including
a Security in global form that is either a Bearer Security or
exchangeable for Bearer Securities) nor any Security initially
represented by a temporary Global Security shall be mailed or otherwise
delivered to any location in the United States in connection with such
exchange. (Section 304)
If so specified in an applicable Prospectus Supplement, interest
in respect of any portion of a temporary Global Security payable in
respect of an Interest Payment Date occurring prior to the date on which
such temporary Global Security is exchangeable for definitive Securities
or for interests in a permanent Global Security will be paid only upon
certification as of the relevant Interest Payment Date with respect to
the portion of such temporary Global Security on which such interest is
to be so credited to the same effect as the certification set forth in
the immediately preceding paragraph. A certification pursuant to the
preceding sentence shall be deemed a request to exchange a beneficial
interest in a temporary Global Security for a definitive Bearer Security
or for an interest in a permanent Global Security, with or without
interest coupons, having the same interest rate and Stated Maturity, as
of the exchange date, and such exchange shall be made without further
certification by the person entitled to such definitive Bearer Security
or beneficial interest in such permanent Global Security. (Section 304)
As used herein, "U.S. person" means a citizen or resident of the
United States, a corporation, partnership or other entity created or
organized in or under the laws of the United States or any political
subdivision thereof and any estate or trust the income of which is
subject to United States federal income taxation regardless of its
source, and "United States" means the United States of America (including
the States and the District of Columbia) and its possessions.
Payment and Paying Agents
Payment of principal of and premium, if any, and interest on
Bearer Securities (including any Securities in global form that are
either Bearer Securities or exchangeable for Bearer Securities) will be
payable in the currency designated in the Prospectus Supplement, subject
to any applicable laws and regulations, at such paying agencies outside
the United States as the Company may appoint from time to time. Any such
payment may be made, at the option of a Holder, by a check in the
designated currency or by transfer to an account in the designated
currency maintained by the payee with a bank located outside the United
States. No payment with respect to any Bearer Security (including any
Security in global form that is either a Bearer Security or exchangeable
for a Bearer Security) will be made at the Corporate Trust Office of the
Trustee or any other paying agency maintained by the Company in the
United States nor will any such payment be made by transfer to an
account, or by mail to an address, in the United States. Notwithstanding
the foregoing, if the Securities are denominated and payable in U.S.
dollars, payments of principal of and premium, if any, and interest on
Bearer Securities (including any Securities in global form that are
either Bearer Securities or exchangeable for Bearer Securities) will be
made in U.S. dollars at the Corporate Trust Office of the Trustee if
payment of the full amount thereof at all paying agencies outside the
United States is illegal or effectively precluded by exchange controls or
other similar restrictions. (Section 1002)
Payment of principal of and premium, if any, on Registered
Securities will be made in the designated currency against surrender of
such Registered Securities at the Corporate Trust Office of the Trustee.
Unless otherwise indicated in the Prospectus Supplement, payment of any
installment of interest on Registered Securities will be made to the
person in whose name such Security is registered at the close of business
on the Regular Record Date for such interest. Unless otherwise indicated
in the Prospectus Supplement, payments of such interest will be made at
the Corporate Trust Office of the Trustee, or by a check in the
designated currency mailed to each Holder at such holder's registered
address. (Sections 307 and 1001)
The paying agents outside the United States initially appointed
by the Company for a series of Securities will be named in an applicable
Prospectus Supplement. The Company may terminate the appointment of any
of the paying agents from time to time, except that the Company will
maintain at least one paying agent in The City of New York for payments
with respect to Registered Securities (other than Global Securities) and
at least one paying agent in a city in Europe so long as any Bearer
Securities are outstanding where Bearer Securities may be presented for
payment and may be surrendered for exchange, provided that so long as any
series of Securities is listed on the London Stock Exchange or the
Luxembourg Stock Exchange or any other stock exchange located outside the
United States and such stock exchange shall so require, the Company will
maintain a paying agent in London or Luxembourg or any other required
city located outside the United States, as the case may be, for such
series of Securities. (Section 1002)
All moneys paid by the Company to a paying agent for the payment
of principal of or premium, if any, or interest on any Security that
remains unclaimed at the end of two years after such principal, premium
or interest shall have become due and payable will be repaid to the
Company upon its request and the Holder of such Security or any coupon
appertaining thereto will thereafter look only to the Company for payment
thereof. (Section 1003)
Limitation on Liens
So long as any of the Securities remain outstanding, the Company
will not, nor will it permit any Subsidiary (as defined) to, issue,
assume or guarantee any debt for money borrowed (herein called "Debt") if
such Debt is secured by a mortgage, pledge, security interest, lien or
other encumbrance (a "mortgage") upon any Principal Property or on any
indebtedness of or equity securities of any Subsidiary or any Affiliate
(as defined), now owned or hereafter acquired, without in any such case
effectively providing that the Securities then Outstanding shall be
secured equally and ratably with (or prior to) such Debt, except that the
foregoing restrictions shall not apply to (i) mortgages on any property
acquired, constructed or improved by the Company or any Subsidiary after
the date of the Indenture which are created within 120 days after such
acquisition, construction or improvement to secure or provide for the
payment of any part of the purchase price or cost thereof, provided that
such mortgages shall not apply to any property theretofore owned by the
Company or any Subsidiary other than, in the case of any construction or
improvement, theretofore unimproved real property; (ii) mortgages on any
property acquired from a corporation which is merged with or into the
Company or a Subsidiary or mortgages outstanding on property at the time
it is acquired by the Company or a Subsidiary or mortgages outstanding on
the property of any corporation at the time it becomes a Subsidiary;
(iii) mortgages to secure Debt of a Subsidiary to the Company or another
Subsidiary; (iv) mortgages or other restrictions relating to equity
securities of an Affiliate resulting from certain agreements or
arrangements between the Company or any Subsidiary and such Affiliate or
other security holders thereof; (v) mortgages incurred in connection with
certain tax exempt financings; and (vi) any extension, renewal or
replacement of any mortgage referred to in the foregoing clauses (i) to
(v). (Section 1006) This covenant is also subject to the exceptions
described below under "Exempted Indebtedness".
The term "Principal Property" is defined to mean (i) any
paperboard, paper or pulp mill or any paper converting plant or any
foundry or any other manufacturing plant or facility located within the
United States or Canada of the Company or any Subsidiary except any such
plant or facility which the Board of Directors by resolution declares is
not of material importance to the total business conducted by the Company
and its Subsidiaries as an entirety and (ii) any timber or timberlands of
the Company or any Subsidiary. The term "Subsidiary" is defined to mean
any corporation at least a majority of the outstanding securities of
which having ordinary voting power to elect a majority of the board of
directors of such corporation is at the time owned or controlled directly
or indirectly by the Company, or by one or more Subsidiaries, or by the
Company and one or more Subsidiaries. (Section 101)
Limitation on Sale and Lease-Back
So long as any of the Securities remain outstanding, the Company
will not, and it will not permit any Subsidiary to, enter into any sale
and lease-back transaction (as defined) involving any Principal Property
unless (i) the Company or such Subsidiary would be entitled to incur debt
secured by a mortgage on the property to be leased without equally and
ratably securing the Securities, as required by the provisions of
"Limitation on Liens" above, or (ii) the Company, within 120 days,
applies to the retirement of Securities or other indebtedness of the
Company with a maturity in excess of one year from the date of such sale
and lease-back and which ranks on a parity with the Securities an amount
equal to the fair value of the property so leased. (Section 1007) This
covenant is also subject to the exceptions described below under
"Exempted Indebtedness".
"Sale and leaseback transaction" is defined to mean any
arrangement with any person providing for the leasing to the Company or a
Subsidiary of any Principal Property for a period of more than three
years, which Principal Property was owned by the Company or such
Subsidiary for more than 120 days and is or has been sold or transferred
to such person.
Exempted Indebtedness
Notwithstanding the provisions described under "Limitation on
Liens" and "Limitation on Sale and Lease-Back", the Company and its
Subsidiaries will be allowed to issue, assume or guarantee Debt which
would otherwise be subject to the above-mentioned "Limitation on Liens"
without equally and ratably securing the Securities, or to enter into
sale and lease-back transactions which would otherwise be subject to the
above-described "Limitation on Sale and Lease-Back" without retiring the
Securities or other debt, or to enter into a combination of such
transactions, if at the time thereof and after giving effect thereto, the
sum of the principal amount of all such debt and the Attributable Debt
(as defined) arising from such sale and lease-back transactions does not
exceed 5% of Consolidated Shareholders' Equity. (Sections 101, 1006 and
1007)
The term "Attributable Debt" is defined to mean the total net
amount of rent under each lease in respect of sale and lease-back
transactions referred to above entered into after the date of the
Indenture which is required to be paid during the remaining term of such
lease or until the earliest date on which the lessee may terminate such
lease upon payment of a penalty (in which case the total rent shall
include such penalty), discounted at the weighted average of the interest
rates borne by the Securities Outstanding from time to time under the
Indenture. The term "Consolidated Shareholders' Equity" is defined to
mean the sum of the consolidated shareholders' equity of the Company and
its consolidated subsidiaries, as shown on the most recent audited
consolidated balance sheet of the Company, plus 75% of the excess of the
"appraised value" of all timberlands owned by the Company and its
Subsidiaries over the book value thereof. (Section 101)
Defeasance and Covenant Defeasance
The Indenture provides, if such provision is made applicable to
the Securities of any series, that the Company may elect either (i) to
defease and be discharged from any and all obligations with respect to
such Securities (except for the obligations to register the transfer or
exchange of such Securities, to replace temporary or mutilated,
destroyed, lost or stolen Securities, to maintain an office or agency in
respect of the Securities, to hold moneys for payment in trust or to pay
any additional amounts pursuant to the terms of such Securities)
("defeasance") or (ii) to be released from its obligations with respect
to such Securities under certain covenants, including those described
under "Limitation on Liens" and "Sale and Lease-Back" above ("covenant
defeasance"), upon the deposit with the Trustee (or other qualifying
trustee), in trust for such purpose, of money, and/or U.S. Government
Obligations (as defined) which through the payment of principal and
interest in accordance with their terms will provide money, in an amount
sufficient to pay and discharge the principal of (and premium, if any)
and interest on such Securities, and any mandatory sinking fund or
analogous payments thereon, on the scheduled due dates therefor. In the
case of defeasance or covenant defeasance, the holders of such Securities
are entitled to receive payments in respect of such Securities solely
from such trust. Such a trust may only be established if, among other
things, the Company has delivered to the Trustee an Opinion of Counsel
(as specified in the Indenture) to the effect that the holders of such
Securities will not recognize income, gain or loss for federal income tax
purposes as a result of such defeasance or covenant defeasance and will
be subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such defeasance or
covenant defeasance had not occurred. Such Opinion of Counsel, in the
case of defeasance under clause (i) above, must refer to and be based
upon a ruling of the Internal Revenue Service or a change in applicable
federal income tax law occurring after the date of the Indenture.
(Article Thirteen)
In the event the Company exercised its covenant defeasance option
under Clause (ii) above with respect to any Securities and such
Securities were declared due and payable because of the occurrence of any
Event of Default, the amount of money and U.S. Government Obligations so
deposited in trust would be sufficient to pay amounts due on such
Securities at the time of their respective Stated Maturities but may not
be sufficient to pay amounts due on such Securities upon any acceleration
resulting from such Event of Default. In such case, the Company would
remain liable for such payments.
Consolidation, Merger and Sale of Assets
The Company, without the consent of the holders of any
outstanding Securities, may consolidate with or merge into, or convey,
transfer or lease its properties and assets substantially as an entirety
to, any Person, and may permit any Person to merge into, or convey,
transfer or lease its properties and assets substantially as an entirety
to, the Company, provided (i) that any successor Person must be a
corporation organized and validly existing under the laws of any domestic
jurisdiction and must assume the Company's obligations on the Securities
and under the Indenture, (ii) that after giving effect to the
transaction, no Event of Default, and no event which, after notice or
lapse of time or both, would become an Event of Default, shall have
occurred and be continuing, (iii) if, as a result of the transaction, any
Principal Property of the Company would become subject to a mortgage that
would not be permitted under "Limitation on Liens", the Company secures
the Securities equally and ratably with (or prior to) the indebtedness
secured by such mortgage and (iv) that certain other conditions are met.
(Section 801)
Modification of the Indenture
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than 66-2/3% in
principal amount of the Securities of each series affected by such
supplemental indenture at the time outstanding thereunder, to enter into
an indenture or indentures supplemental thereto for the purpose of adding
any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of modifying in any manner the rights of
the holders of Securities of such series under the Indenture; provided,
however, that no such supplemental indenture shall, without the consent
of the Holder of each Outstanding Security affected thereby, among other
things, (i) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security; (ii) reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof; (iii) reduce the amount of the
principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof; (iv)
change any Place of Payment where, or the coin or currency in which, any
Security or any premium or the interest thereon is payable; (v) impair
the right to institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof (or, in the case of redemption, on or
after the Redemption Date); (vi) change any obligation of the Company to
pay any additional amounts pursuant to the terms of such Securities;
(vii) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose holders is required for
any such supplemental indenture, or the consent of whose holders is
required for any waiver (of compliance with certain provisions of the
Indenture or certain defaults thereunder and their consequences) provided
for in the Indenture; (viii) reduce the voting or quorum requirements for
meetings of holders of Securities of any series; or (ix) modify certain
other provisions of the Indenture. (Section 902)
The Indenture contains provisions for convening meetings of the
holders of Securities of a series if Securities of that series are
issuable in whole or in part as Bearer Securities. (Section 1401) A
meeting may be called at any time by the Trustee thereunder, or upon the
request of the Company or the holders of at least 10% in principal amount
of the Outstanding Securities of such series, in any such case upon
notice given in accordance with such Indenture. (Section 1402) Except as
limited by the proviso in the preceding paragraph, any resolution
presented at a meeting or adjourned meeting at which a quorum is present
may be adopted by the affirmative vote of the holders of a majority in
principal amount of the Outstanding Securities of that series; provided,
however, that, except as limited by the proviso in the preceding
paragraph, any resolution with respect to any consent or waiver that may
be given by the holders of not less than 66-2/3% in principal amount of
the Outstanding Securities of a series may be adopted at a meeting or an
adjourned meeting at which a quorum is present only by the affirmative
vote of 66-2/3% in principal amount of the Outstanding Securities of that
series; and provided further that, except as limited by the proviso in
the preceding paragraph, any resolution with respect to any demand,
consent, waiver or other action that may be made, given or taken by the
holders of a specified percentage, which is less than a majority, in
principal amount of Outstanding Securities of a series may be adopted at
a meeting or adjourned meeting at which a quorum is present by the
affirmative vote of the holders of such specified percentage in principal
amount of the Outstanding Securities of that series. (Section 1404)
Any resolution passed or decision taken at any meeting of holders
of Securities of any series duly held in accordance with the Indenture
will be binding on all holders of Securities of that series and the
related coupons. The quorum at any meeting called to adopt a resolution,
and at any reconvening meeting, will be persons holding or representing a
majority in principal amount of the Outstanding Securities of a series;
provided, however, that if any action is to be taken at such meeting with
respect to a consent or waiver which may be given by the holders of not
less than 66-2/3% in principal amount of the Outstanding Securities of a
series, the persons holding or representing 66-2/3% in principal amount of
the Outstanding Securities of such series will constitute a quorum.
(Section 1404)
The holders of at least 66-2/3% in principal amount of Securities
of any series may waive compliance by the Company with any term,
provision or condition regarding corporate existence (Section 1004),
maintenance of properties (Section 1005), limitation on liens (Section
1006) and limitation on sale and lease-back (Section 1007) before the
time for such compliance. (Section 1009)
Events of Default
An event of default with respect to Securities of any series is
defined in the Indenture as being: (i) default for 30 days in payment of
any interest on such series of Securities; (ii) default in payment of
principal of or premium, if any, on such series of Securities; (iii)
default in the deposit of any sinking fund payment on such series of
Securities; (iv) default by the Company in the payment of any
indebtedness for borrowed money which has not been cured or waived, the
outstanding principal amount of which at the time of such default is
equal to or in excess of $25,000,000; (v) default for 60 days after
notice in performance of any other covenant in the Indenture; and (vi)
certain events in bankruptcy, insolvency or reorganization of the
Company. (Section 501) The Indenture provides that the Trustee may
withhold notice to the holders of Securities of a series issued
thereunder of any default with respect to such series (except in payment
of principal of, or interest or premium, if any, on, such series) if the
Trustee considers it in the interest of such holders to do so. (Section
602) The Indenture provides that, if an event of default specified
therein shall have happened and be continuing, with respect to Securities
of any series, either the Trustee or the holders of 25% in principal
amount of the Securities of such series, then outstanding thereunder, may
declare the principal of all the Securities of such series to be due and
payable, but in certain cases the holders of a majority in principal
amount of the Securities of such series then outstanding may rescind and
annul such declaration and its consequences. (Section 502)
The Company will be required to furnish to the Trustee annually
an Officers' Certificate as to any default in the performance by the
Company of certain of its obligations under the Indenture. (Section 1008)
Reference is made to the Prospectus Supplement or Supplements
relating to each series of Securities offered which are Original Issue
Discount Securities for the particular provisions relating to
acceleration of the Maturity of a portion of the principal amount of such
Original Issue Discount Securities upon the occurrence of an Event of
Default and the continuation thereof.
Subject to the provisions of the Indenture relating to the duties
of the Trustee, the Trustee shall be under no obligation to exercise any
of its rights or powers under the Indenture at the request, order or
direction of any of the holders of the Securities unless such holders
shall have offered to the Trustee reasonable indemnity. (Section 603)
Subject to such provision for indemnification, the holders of a majority
in principal amount of the Securities of any series, at the time
outstanding shall have the right to waive certain past defaults (except a
default in the payment of principal, premium, if any, or interest, if
any, or a provision which cannot be modified or amended without the
consent of the holder of each Outstanding Security of a series affected)
and to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee or exercising any trust or power
conferred on the Trustee; provided that the Trustee shall have the right
to decline to follow any such direction if the action so directed may not
lawfully be taken or conflicts with the Indenture. (Sections 512 and 513)
The Trustee shall be fully protected in respect of any action taken,
suffered or omitted with respect to the Indenture made in good faith and
in reliance upon the written advice or opinion of counsel.
No holder of a Security of any series will have any right to
institute any proceeding with respect to the Indenture, or for the
appointment of a receiver or a trustee, or for any other remedy
thereunder, unless (1) such holder has previously given to the Trustee
written notice of a continuing Event of Default with respect to the
Securities of that series, (ii) the holders of at least 25% in aggregate
principal amount of the Outstanding Securities of that series have made
written request, and such holder or holders have offered reasonable
indemnity, to the Trustee to institute such proceeding as trustee and
(iii) the Trustee has failed to institute such proceeding, and has not
received from the holders of a majority in aggregate principal amount of
the outstanding securities of that series a direction inconsistent with
such request, within 60 days after such notice, request and offer.
(Section 507) However, such limitations do not apply to a suit instituted
by a holder of a Security for the enforcement of payment of the principal
of or any premium or interest on such Security on or after the applicable
due date specified in such Security. (Section 508)
Concerning the Trustees
The Prospectus Supplement will set forth the Trustee designated
for the series of the Securities offered thereby and such Trustee's
relationships with the Company. Each of Bankers Trust Company and The
First National Bank of Chicago provides, and any other trustee designated
by the Company may provide, various banking services to the Company in
the ordinary course of business. Certain of the banks are, and any other
trustee designated by the Company may be, one of the lenders or a
co-agent for various other banks under the Company's revolving credit
arrangements.
PLAN OF DISTRIBUTION
The Company may sell Securities to or through underwriters, and
also may sell Securities directly to other purchasers or through agents.
The distribution of the Securities may be effected from time to time in
one or more transactions at a fixed price or prices, which may be
changed, or at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices.
In connection with the sale of Securities, underwriters, dealers
or agents may receive compensation from the Company in the form of
discounts, concessions or commissions. Underwriters, dealers and agents
that participate in the distribution of 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 Securities by them may be deemed
to be underwriting discounts and commissions, under the 1933 Act. Any
such underwriter or agent will be identified, and any such compensation
received from the Company will be described, in the applicable Prospectus
Supplement.
All Securities will be a new issue of securities with no
established trading market. Any underwriters to whom Securities are sold
by the Company for public offering and sale may make a market in such
Securities, but such underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. No assurance
can be given as to the liquidity of the trading market for any
Securities.
Bearer Securities are subject to U.S. tax law requirements and
may not be offered, sold or delivered within the United States or its
possessions or to a U.S. person, except in certain transactions permitted
by U.S. tax regulations. Terms used in this paragraph have the meanings
given to them by the Internal Revenue Code of 1986, as amended, and the
regulations thereunder.
Under agreements which may be entered into by the Company,
underwriters, dealers and agents who participate in the distribution of
Securities may be entitled to indemnification by the Company against
certain liabilities, including liabilities under the 1933 Act.
VALIDITY OF SECURITIES
The validity of the Securities offered will be passed upon for
the Company by its Assistant Secretary and Associate General Counsel and
Skadden, Arps, Slate, Meagher & Flom LLP or by such other counsel
specified in the applicable Prospectus Supplement. The Assistant
Secretary and Associate General Counsel has options to acquire less than
1% of the outstanding common stock of the Company.
EXPERTS
The financial statements and the related financial statement
schedules incorporated in this Prospectus by reference from the Company's
Annual Report on Form 10-K for the year ended December 31, 1995 have been
audited by Deloitte & Touche LLP, independent auditors, as stated in
their report, which is incorporated herein by reference and have been so
incorporated in reliance upon the report of such firm given upon their
authority as experts in accounting and auditing.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The expenses in connection with the issuance and distribution of
the securities being registered, other than underwriting compensation,
are:
Filing Fee For Registration Statement................. $166,667
Legal Fees and Expenses............................... 75,000*
Accounting Fees and Expenses.......................... 60,000*
Trustee's Fees and Expenses (including counsel fees).. 10,000*
Blue Sky Fees and Expenses............................ 5,000*
Rating Agency Fees.................................... 160,000*
Printing Fees......................................... 15,000*
Miscellaneous......................................... 23,333*
---------
Total.......................................... $515,000*
=========
- ---------------
* Estimated.
Item 15. Indemnification of Directors and Officers.
Section 2 of Article V of the Regulations of the Registrant
provides for the indemnification by the Registrant of its officers,
directors, employees and others against certain liabilities and expenses.
Such provision provides different treatment for (i) cases other than
those involving actions or suits by or in the right of the Registrant and
(ii) cases involving actions or suits by or in the right of the
Registrant. In the first category, the Registrant indemnifies each
director, officer, employee and agent of the Registrant and each person
who serves another organization at the request of the Registrant, against
expenses, including attorneys' fees, judgments, decrees, fines, penalties
and amounts paid in settlement actually and reasonably incurred by such
person in connection with any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that such person is or was in such
position or so serving, if such person acted in good faith and in a
manner reasonably believed to be in or not opposed to the best interests
of the Registrant, and with respect to any matter the subject of a
criminal action, suit, or proceeding, if such person had no reasonable
cause to believe that such person's conduct was unlawful. In the second
category, the Registrant indemnifies each director, officer, employee and
agent of the Registrant and each person who serves another organization
at the request of the Registrant, against expenses, including attorneys'
fees, actually and reasonably incurred by such person in connection with
the defense or settlement of any threatened, pending or completed action
or suit by or in the right of the Registrant to procure a judgment in its
favor, by reason of the fact that such person is or was in such position
or so serving, if such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interests
of the Registrant, except that no indemnification shall be made in
respect of any matter as to which such person has been adjudged to be
liable for negligence or misconduct in the performance of such person's
duty to the Registrant unless and only to the extent that a court
determines 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. Any such indemnification, unless
ordered by a court, may be made by the Registrant only as authorized in
the specific case upon a determination that indemnification of such
person is proper in the circumstances because such person has met the
applicable standard of conduct. Such determination must be made (a) by a
majority vote of a quorum consisting of directors of the Registrant who
were not and are not parties to or threatened with any such action, suit,
or proceeding, or (b), if such a quorum is not obtainable or if a
majority vote of a quorum of disinterested directors so directs, in a
written opinion by independent legal counsel, or (c) by the shareholders,
or (d) by the Court of Common Pleas or the court in which such action,
suit or proceeding was brought. Any determination made by the
disinterested directors or by independent legal counsel must be promptly
communicated to the person who threatened or brought an action or suit by
or in the right of the Registrant and such person may, within ten days,
petition an appropriate court to review the reasonableness of such
determination.
To the extent that a person covered by the indemnification
provisions of the Regulations has been successful on the merits or
otherwise in defense of any action referred to above, indemnification of
such person against expenses is mandatory.
The Regulations also provide that expenses, including attorneys'
fees, amounts paid in settlement, and (except in the case of an action by
or in the right of the Registrant) judgments, decrees, fines and
penalties incurred in connection with any potential, threatened, pending
or completed action or suit by any person by reason of the fact that he
is or was a director, officer, employee or agent of the Registrant or is
or was serving another organization at the request of the Registrant may
be paid or reimbursed by the Registrant, as authorized by the Board of
Directors upon a determination that such payment or reimbursement is in
the best interests of the Registrant.
The Regulations also provide that, with certain limited
exceptions, a director will be liable in damages for any action he takes
or fails to take as a director only if it is proved by clear and
convincing evidence that such action or failure to act involved an act or
omission undertaken with deliberate intent to cause injury to the
Registrant or undertaken with reckless disregard for the best interests
of the Registrant. The Regulations also provide that, with certain
limited exceptions, expenses incurred by a director in defending an
action must be paid by the Registrant as they are incurred in advance of
the final disposition, if the director agrees (i) to repay such advances
if it is proved by clear and convincing evidence that his action or
failure to act involved an act or omission undertaken with deliberate
intent to cause injury to the Registrant or undertaken with reckless
disregard for the Registrant's best interests and (ii) to reasonably
cooperate with the Registrant concerning the action.
The Registrant has entered into indemnification agreements with
its directors. The agreements provide that the Registrant will promptly
indemnify each director to the fullest extent permitted by applicable law
and that the Registrant will advance expenses under the circumstances
permitted by Ohio law. The agreements also provide that the Registrant is
to take certain actions upon the occurrence of certain events which
represent a change in control of the Registrant, including establishment
of a $10 million escrow account as security for certain of the
Registrant's indemnification obligations. While not requiring the
maintenance of directors' and officers' liability insurance, the
indemnification agreements do require that the directors be provided with
the maximum coverage if such insurance is maintained and that, in the
event of any reduction in, or cancellation of, present directors' and
officers' liability insurance coverage, the Registrant will stand as
self-insurer with respect to the coverage not retained and will indemnify
the directors against any loss resulting from any reduction in, or
cancellation of, such insurance coverage. The agreements also provide
that the Registrant may not bring any action against a director more than
two years (or such shorter period as may be applicable under the law)
after the date a cause of action accrues.
The Registrant purchased, effective for the period from August 1,
1996 through August 1, 1997, insurance policies under which the insurers
reimburse the Registrant, subject to the terms and conditions of the
insurance policies, for the Registrant's obligation of indemnifying
officers and directors. The insurers have agreed to reimburse the
Registrant for loss amounts arising from any claim or claims which are
first made against directors or officers of the Registrant and reported
to the insurers during the policy period for any alleged wrongful act in
their respective capacities as directors or officers of the Registrant,
but only when and to the extent that the Registrant has indemnified such
directors or officers for such loss pursuant to law, common or statutory,
or contract, or the articles of incorporation or regulations of the
Registrant which determine such rights of indemnity. This reimbursement
is in excess of a $500,000 retention for loss arising from claims
alleging the same wrongful act or related wrongful acts and is subject to
a maximum amount of $100,000,000, including excess policies.
In conjunction with the above described insurance, the Registrant
maintains insurance to protect the individual director or officer against
specified expenses and liabilities with respect to which the Registrant
does not provide indemnification. The individual coverage is subject to
the same maximum liability provisions as described above with no
deductible.
Item 16. Exhibits.
1.1 (a) -- Underwriting Agreement Standard Provisions dated as of
January , 1997. To be filed by amendment or an exhibit to
a Current Report of The Mead Corporation on Form 8-K and
incorporated herein by reference.
1.1 (b) -- Form of Pricing Agreement. To be filed by amendment or an
exhibit to a Current Report of The Mead Corporation on Form
8-K and incorporated herein by reference.
1.2 -- Agency Agreement. To be filed by amendment or an exhibit to
a Current Report of The Mead Corporation on Form 8-K and
incorporated herein by reference.
4 (a) -- Indenture dated as of July 15, 1982 between The Mead
Corporation and Bankers Trust Company, including the form
of Security (incorporated by reference to Exhibit 4(a) to
Amendment No. 2 to Registration Statement No. 2-77811 and
qualified under the Trust Indenture Act of 1939 in
connection with such Registration Statement).
(b) -- First Supplemental Indenture dated as of March 1, 1987 to
the Indenture dated as of July 15, 1982 between The Mead
Corporation and Bankers Trust Company (incorporated by
reference to Exhibit 4(b) to Registration Statement No.
33-12634).
(c)* -- Second Supplemental Indenture dated as of October 15, 1989
to the Indenture dated as of July 15, 1982 between The Mead
Corporation and Bankers Trust Company.
(d)* -- Third Supplemental Indenture dated as of November 15, 1991
between The Mead Corporation and Bankers Trust Company.
(e) -- Indenture dated as of February 1, 1993 between The Mead
Corporation and The First National Bank of Chicago,
including form of Security (incorporated by reference to
Exhibit (4)(iii) to Form 10-K for the year ended December
31, 1992 and qualified under the Trust Indenture Act of
1939 in connection with Registration Statement No.
33-43994).
(f) -- Form of Indenture between The Mead Corporation and other
trustees, including form of Security (incorporated by
reference to Exhibit 4(e) to Registration Statement No.
33-43994 and qualified under the Trust Indenture Act of
1939 in connection with such Registration Statement).
5 (a)* -- Opinion and consent of David L. Santez, Assistant Secretary
and Associate General Counsel.
(b)* -- Opinion and consent of Skadden, Arps, Slate, Meagher & Flom
LLP.
12* -- Calculation of Ratio of Earnings to Fixed Charges.
23 (a) -- Consent of Deloitte & Touche LLP.
(b)* -- Consent of David L. Santez (contained in opinion filed as
Exhibit 5(a) hereto).
(c)* -- Consent of Skadden, Arps, Slate, Meagher & Flom LLP
(contained in opinion filed as Exhibit 5(b) hereto).
24* -- Power of Attorney (contained on page II-5 hereto).
25 (a)* -- Form T-1 of Bankers Trust Company.
(b)* -- Form T-1 of The First National Bank of Chicago.
- ---------------
* 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.
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 and of
the estimated maximum offering range may be reflected in
the form of the prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes
in volume and price represent no more than 20 percent
change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the
effective registration statement.
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in the registration statement or any material
change to such information in the registration statement;
Provided, however, that paragraphs (i) and (ii) do not apply if
the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports
filed by the registrant pursuant to section 13 or section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and
the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of the
offering.
(4) 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 the registration statement shall be deemed to
be a new registration statement relating to the securities
offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide
offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the 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.
The undersigned registrant hereby undertakes to file an
application for the purpose of determining the eligibility of the trustee
to act under subsection (a) of Section 310 of the Trust Indenture Act in
accordance with the rules and regulations prescribed by the Commission
under Section 305(b)(2) of the Act.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused
this Amendment to the Registration Statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Dayton,
State of Ohio, on the 10th day of January, 1997.
THE MEAD CORPORATION
By /s/ Steven C. Mason
(Steven C. Mason)
Chairman and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Amendment to the Registration Statement has been signed below by the
following persons in the capacities stated below and on the 10th day of
January, 1997.
Signature Capacity
/s/ Steven C. Mason Director, Chairman and Chief
---------------------------- Executive Officer (principal executive
(Steven C. Mason) officer)
/s/ William R. Graber Vice President and Chief Financial
- ----------------------------- Officer (principal financial officer)
(William R. Graber)
/s/ Gregory J. Geswein Controller (principal accounting officer)
- ----------------------------
(Gregory T. Geswein)
* Director
- ----------------------------
(John C. Bogle)
* Director
- ----------------------------
(John G. Breen)
* Director
- -----------------------------
(William E. Hoglund)
* Director
- ------------------------------
(James G. Kaiser)
* Director
- ------------------------------
(John A. Krol)
- ------------------------------- Director
(Susan A. Kropf)
* Director
- ------------------------------
(Charles S. Mechem, Jr.)
* Director
- ------------------------------
(Paul F. Miller, Jr.)
* Director
- ------------------------------
(Thomas B. Stanley, Jr.)
* Director
- -------------------------------
(Lee J. Styslinger, Jr.)
* Director
- -------------------------------
(Jerome F. Tatar)
*By /s/ William R. Graber
--------------------------
(William R. Graber)
Attorney in Fact
EXHIBIT INDEX
Exhibit Page
1.1 (a) -- Underwriting Agreement Standard Provisions dated as of
January , 1997. To be filed by amendment or an exhibit to
a Current Report of The Mead Corporation on Form 8-K and
incorporated herein by reference.
1.1 (b) -- Form of Pricing Agreement. To be filed by amendment or an
exhibit to a Current Report of The Mead Corporation on Form
8-K and incorporated herein by reference.
1.2 -- Agency Agreement. To be filed by amendment or an exhibit to
a Current Report of The Mead Corporation on Form 8-K and
incorporated herein by reference.
4 (a) -- Indenture dated as of July 15, 1982 between The Mead
Corporation and Bankers Trust Company, including the form
of Security (incorporated by reference to Exhibit 4(a) to
Amendment No. 2 to Registration Statement No. 2-77811 and
qualified under the Trust Indenture Act of 1939 in
connection with such Registration Statement).
(b) -- First Supplemental Indenture dated as of March 1, 1987 to
the Indenture dated as of July 15, 1982 between The Mead
Corporation and Bankers Trust Company (incorporated by
reference to Exhibit 4(b) to Registration Statement No.
33-12634).
(c)* -- Second Supplemental Indenture dated as of October 15, 1989
to the Indenture dated as of July 15, 1982 between The Mead
Corporation and Bankers Trust Company.
(d)* -- Third Supplemental Indenture dated as of November 15, 1991
between The Mead Corporation and Bankers Trust Company.
(e) -- Indenture dated as of February 1, 1993 between The Mead
Corporation and The First National Bank of Chicago,
including form of Security (incorporated by reference to
Exhibit (4)(iii) to Form 10-K for the year ended December
31, 1992 and qualified under the Trust Indenture Act of
1939 in connection with Registration Statement No.
33-43994).
(f) -- Form of Indenture between The Mead Corporation and other
trustees, including form of Security (incorporated by
reference to Exhibit 4(e) to Registration Statement No.
33-43994 and qualified under the Trust Indenture Act of
1939 in connection with such Registration Statement).
5 (a)* -- Opinion and consent of David L. Santez, Assistant Secretary
and Associate General Counsel.
(b)* -- Opinion and consent of Skadden, Arps, Slate, Meagher & Flom
LLP.
12* -- Calculation of Ratio of Earnings to Fixed Charges.
23 (a) -- Consent of Deloitte & Touche LLP.
(b)* -- Consent of David L. Santez (contained in opinion filed as
Exhibit 5(a) hereto).
(c)* -- Consent of Skadden, Arps, Slate, Meagher & Flom LLP
(contained in opinion filed as Exhibit 5(b) hereto).
24* -- Power of Attorney (contained on page II-5 hereto).
25 (a)* -- Form T-1 of Bankers Trust Company.
(b)* -- Form T-1 of The First National Bank of Chicago.
- ---------------
* Previously filed.