AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 13, 1999
REGISTRATION NO. 333- (1)
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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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INTERNATIONAL BUSINESS MACHINES CORPORATION
(Exact name of registrant as specified in its charter)
ARMONK, NEW YORK 10504
(914) 499-1900
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
LAWRENCE R. RICCIARDI
SENIOR VICE PRESIDENT & GENERAL COUNSEL
INTERNATIONAL BUSINESS MACHINES CORPORATION
ARMONK, NEW YORK 10504
(914) 499-1900
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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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, 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: / /
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CALCULATION OF REGISTRATION FEE
(a) Subject to Rule 462(b) under the Securities Act, in no event will the
aggregate initial offering price of the securities issued under this
Registration Statement (which includes securities issued hereunder pursuant
to Rule 429 under the Securities Act) exceed $5,115,000,000, or if any
securities are issued in any foreign currency units, the U.S. dollar
equivalent of $5,115,000,000. For Debt Securities issued with an original
issue discount, the amount to be registered is calculated as the initial
accreted value of such Debt Securities.
(b) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(o).
(c) In addition to any Preferred Stock, Depositary Shares or Capital Stock that
may be issued directly under this Registration Statement, there are being
registered hereunder an indeterminate number of shares of Preferred Stock,
Depositary Shares or Capital Stock as may be issued upon conversion or
exchange of Debt Securities, Preferred Stock or Depositary Shares, as the
case may be. No separate consideration will be received for any shares of
Preferred Stock, Depositary Shares or Capital Stock so issued upon
conversion or exchange.
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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 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.
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(1) PURSUANT TO RULE 429 OF THE RULES AND REGULATIONS OF THE SECURITIES AND
EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, THE PROSPECTUS
INCLUDED IN THIS REGISTRATION STATEMENT ALSO RELATES TO $1,115,000,000 OF
SECURITIES PREVIOUSLY REGISTERED UNDER THE REGISTRANT'S REGISTRATION
STATEMENT ON FORM S-3 (FILE NO. 333-40669). THIS REGISTRATION STATEMENT ALSO
CONSTITUTES POST-EFFECTIVE AMENDMENT NO. 1 WITH RESPECT TO THE REGISTRANT'S
REGISTRATION STATEMENT ON FORM S-3 (FILE NO. 333-40669).
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SUBJECT TO COMPLETION JANUARY 13, 1999
PROSPECTUS
INTERNATIONAL BUSINESS MACHINES CORPORATION
New Orchard Road
Armonk, New York 10504
(914) 499-1900
$5,115,000,000
DEBT SECURITIES
PREFERRED STOCK
DEPOSITARY SHARES
CAPITAL STOCK
WARRANTS
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WE WILL PROVIDE SPECIFIC TERMS OF THESE SECURITIES IN SUPPLEMENTS TO THIS
PROSPECTUS.
YOU SHOULD READ THIS PROSPECTUS AND ANY SUPPLEMENT CAREFULLY BEFORE YOU INVEST.
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These securities have not been approved by the Securities and Exchange
Commission or any state securities commission, nor have these organizations
determined that this prospectus is accurate or complete. Any representation to
the contrary is a criminal offense.
The date of this prospectus is , 1999.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE
MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUMMARY
This summary highlights selected information from this document and may not
contain all of the information that is important to you. To understand the terms
of our securities, you should carefully read this document with the attached
prospectus supplement. Together these documents will give the specific terms of
the securities we are offering. You should also read the documents we have
referred you to in "Where You Can Find More Information" below for information
on our company and our financial statements. Certain capitalized terms used in
this summary are defined elsewhere in this prospectus.
THE SECURITIES WE MAY OFFER
This prospectus is part of a registration statement (No. 333- ) (the
"Registration Statement") that we filed with the SEC utilizing a "shelf"
registration process. Under this shelf process, we may offer from time to time
up to $5,115,000,000 of any of the following securities, either separately or in
units: DEBT, PREFERRED STOCK, DEPOSITARY SHARES, CAPITAL STOCK AND WARRANTS.
This prospectus provides you with a general description of the securities we may
offer. Each time we offer securities, we will provide you with a prospectus
supplement that will describe the specific amounts, prices and terms of the
securities being offered. The prospectus supplement may also add, update or
change information contained in this prospectus.
DEBT SECURITIES
We may offer unsecured general obligations of our company, which may be
senior (the "Senior Debt Securities") or subordinated (the "Subordinated Debt
Securities"). The Senior Debt Securities and the Subordinated Debt Securities
are together referred to in this prospectus as the "Debt Securities". The Senior
Debt Securities will have the same rank as all of our other unsecured,
unsubordinated debt. The Subordinated Debt Securities will be entitled to
payment only after payment on our Senior Indebtedness (as described below). In
addition, the Subordinated Debt Securities will be effectively subordinated to
creditors (including trade creditors) and preferred stockholders of our
subsidiaries.
The Senior Debt Securities will be issued under an indenture between us and
The Chase Manhattan Bank, as the trustee. The Subordinated Debt Securities will
be issued under an indenture between us and the trustee we name in the
prospectus supplement. We have summarized certain general features of the Debt
Securities from the indentures. We encourage you to read the indentures (which
are exhibits to the Registration Statement) and our recent periodic and current
reports that we file with the SEC. Directions on how you can get copies of these
reports are provided under "Where You Can Find More Information" below.
GENERAL INDENTURE PROVISIONS THAT APPLY TO SENIOR AND SUBORDINATED DEBT
SECURITIES
Neither indenture limits the amount of debt that we may issue. In addition,
except for certain restrictions on secured indebtedness and sale and leaseback
transactions in the indenture relating to the Senior Debt Securities, neither
indenture provides holders any protection should there be a highly leveraged
transaction, recapitalization or restructuring involving our company.
The indentures allow us to merge or consolidate with another company, or to
sell all or substantially all of our assets to another company. If these events
occur, the other company will be required to assume our responsibilities
relating to the Debt Securities, and we will be released from all liabilities
and obligations.
The indentures provide that holders of a majority of the total principal
amount of outstanding Debt Securities of any series may vote to change certain
of our obligations or certain of your rights concerning the Debt Securities of
that series. However, to change the amount or timing of principal, interest or
other payments under the Debt Securities, every holder in the series must
consent.
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If we satisfy certain conditions in the indenture relating to the Senior
Debt Securities, we may discharge that indenture at any time by depositing with
the trustee sufficient funds or government obligations to pay the Senior Debt
Securities when due.
EVENTS OF DEFAULT. Each indenture provides that the following are events of
default:
- If we do not pay interest for 30 days after its due date.
- If we do not pay principal or premium when due.
- If we do not make any sinking fund for 30 days after its due date.
- If we continue to breach a covenant for 90 days after notice.
- If a certain bankruptcy or insolvency event occurs.
If an Event of Default occurs with respect to any series of Debt Securities,
the trustee or holders of 25% of the outstanding principal amount of that series
may declare the principal amount of the series immediately payable. However,
holders of a majority of the principal amount may rescind this action.
GENERAL INDENTURE PROVISIONS THAT APPLY ONLY TO SENIOR DEBT SECURITIES
The indenture relating to the Senior Debt Securities contains covenants
restricting our ability to incur secured indebtedness and enter into sale and
leaseback transactions under certain specific conditions described below under
"Senior Debt Securities".
GENERAL INDENTURE PROVISIONS THAT APPLY ONLY TO SUBORDINATED DEBT SECURITIES
The Subordinated Debt Securities will be subordinated to all "Senior
Indebtedness", which includes all indebtedness for money borrowed by us, except
indebtedness that is stated to be not superior to, or to have the same rank as,
the Subordinated Debt Securities. In addition, claims of our subsidiaries'
creditors and preferred stockholders generally will have priority with respect
to the subsidiaries' assets and earnings over the claims of our creditors,
including holders of the Subordinated Debt Securities, even though those
obligations may not constitute Senior Indebtedness. The Subordinated Debt
Securities, therefore, will be effectively subordinated to creditors (including
trade creditors) and preferred stockholders of our subsidiaries.
PREFERRED STOCK AND DEPOSITARY SHARES
We may issue our preferred stock, par value $0.01 per share, in one or more
series (the series being offered are referred to as "Preferred Stock"). Our
Board of Directors will determine the dividend, voting, conversion and other
rights of the series being offered and the terms and conditions relating to its
offering and sale at the time of the offer and sale. We may also issue
fractional shares of Preferred Stock that will be represented by Depositary
Shares and Depositary Receipts.
CAPITAL STOCK
We may issue our capital stock, par value $0.50 per share (the "Capital
Stock"). Holders of Capital Stock are entitled to receive dividends when
declared by the Board of Directors (subject to rights of preferred
stockholders). Each holder of Capital Stock is entitled to one vote per share.
The holders of Capital Stock have no preemptive rights or cumulative voting
rights.
WARRANTS
We may issue warrants for the purchase of Debt Securities, Preferred Stock
or Capital Stock. We may issue warrants independently or together with other
securities.
RATIOS OF EARNINGS TO FIXED CHARGES AND EARNINGS TO COMBINED FIXED CHARGES AND
PREFERRED STOCK DIVIDENDS
The ratio of earnings to fixed charges and the ratio of earnings to combined
fixed charges
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and preferred stock dividends for each of the periods indicated are as follows:
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(a) No ratios are shown for 1993 as earnings were not sufficient to cover fixed
charges and combined fixed charges and preferred stock dividends. As a
result of the net loss incurred for the year ended December 31, 1993,
earnings were inadequate to cover fixed charges and combined fixed charges
and preferred stock dividends by $8,478 million and $8,525 million,
respectively.
The ratio of earnings to fixed charges is computed by dividing earnings,
which includes income before taxes (excluding the cumulative and transition
effects of accounting changes) and fixed charges, by fixed charges. The ratio of
earnings to combined fixed charges and preferred stock dividends is computed by
dividing earnings by the sum of fixed charges and dividends on preferred stock.
For purposes of calculating this ratio, the preferred stock dividend
requirements were assumed to be equal to the pre-tax earnings that would be
required to cover such dividend requirements based on our effective income tax
rates for the respective periods. "Fixed charges" consist of interest on debt
and a portion of rentals determined to be representative of interest.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other
information with the SEC. You may read and copy any document we file at the
SEC's public reference rooms in Washington, D.C., New York, New York and
Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for further information
on the public reference rooms. Our SEC filings are also available to the public
at the SEC's web site at http://www.sec.gov.
The SEC allows us to "incorporate by reference" into this prospectus the
information we file with it, which means that we can disclose important
information to you by referring you to those documents. The information
incorporated by reference is considered to be part of this prospectus, and later
information that we file with the SEC will automatically update and supersede
this information. We incorporate by reference the documents listed below and any
future filings made with the SEC under Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934 until our offering is completed:
i. Annual Report on Form 10-K for the year ended December 31, 1997;
ii. Quarterly Reports on Form 10-Q for the quarters ended March 31, 1998, June
30, 1998 and September 30, 1998; and
iii. Current Reports on Form 8-K, filed on January 8, 1998, January 22, 1998,
April 22, 1998, July 21, 1998, October 21, 1998 and December 16, 1998.
You may request a copy of these filings at no cost, by writing to or
telephoning our transfer agent at the following address:
First Chicago Trust Company of New York
Mail Suite 4688
P.O. Box 2530
Jersey City, New Jersey 07303-2530
(201) 324-0405
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different information. We are not making an
offer of these securities in any state where the offer is not permitted. You
should not assume that the information in this prospectus or any prospectus
supplement is accurate as of any date other than the date on the front of the
document.
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THE COMPANY
IBM develops, manufactures and sells advanced information processing
products, including computers and microelectronic technology, software,
networking systems and information technology-related services. We offer value
through our North America, Europe/ Middle East/Africa, Latin America,
Asia/Pacific, Global Services and Worldwide Client Server Computing business
units, by providing comprehensive and competitive product choices.
USE OF PROCEEDS
Unless otherwise specified in the applicable prospectus supplement, the net
proceeds we receive from the sale of the securities offered by this prospectus
and the accompanying prospectus supplement will be used for general corporate
purposes. General corporate purposes may include the repayment of debt,
investments in or extensions of credit to our subsidiaries, redemption of
preferred stock, or the financing of possible acquisitions or business
expansion. The net proceeds may be invested temporarily or applied to repay
short-term debt until they are used for their stated purpose.
DESCRIPTION OF THE DEBT SECURITIES
The following description of the terms of the Debt Securities sets forth
certain general terms that may apply to the Debt Securities. The particular
terms of any Debt Securities will be described in the prospectus supplement
relating to those Debt Securities.
The Debt Securities will be either our senior debt securities (the "Senior
Debt Securities") or our subordinated debt securities (the "Subordinated Debt
Securities"). The Senior Debt Securities will be issued under an Indenture dated
as of October 1, 1993, as supplemented on December 15, 1995 (the "Senior
Indenture"), between us and The Chase Manhattan Bank, as Trustee. The
Subordinated Debt Securities will be issued under an Indenture (the
"Subordinated Indenture") to be entered into between us and the Trustee named in
a prospectus supplement. The Senior Indenture and the Subordinated Indenture are
together called the "Indentures".
The following summary of certain provisions of the Indentures is not
complete. You should refer to the Indentures, copies of which are exhibits to
the registration statement of which this prospectus is a part (Registration
Statement File No. 333- ; the "Registration Statement"). Section references
below are to the section in the applicable Indenture. Capitalized terms have the
meanings assigned to them in the applicable Indenture. The referenced sections
of the Indentures and the definitions of capitalized terms are incorporated by
reference.
GENERAL
Neither Indenture limits the amount of Debt Securities that we may issue.
Each Indenture provides that Debt Securities may be issued up to the principal
amount authorized by us from time to time. The Senior Debt Securities will be
unsecured and will have the same rank as all of our other unsecured and
unsubordinated debt. The Subordinated Debt Securities will be unsecured and will
be subordinated and junior to all Senior Indebtedness (as defined below under
"Subordinated Debt Securities--Subordination").
The Debt Securities may be issued in one or more separate series of Senior
Debt Securities and/or Subordinated Debt Securities. The prospectus supplement
relating to the particular series of Debt Securities being offered will specify
the particular amounts, prices and terms of those Debt Securities. These terms
may include:
i. the title of the Debt Securities;
ii. any limit upon the aggregate principal amount of the Debt Securities;
iii. the date or dates, or the method of determining the dates, on which the
Debt Securities will mature;
iv. the interest rate or rates of the Debt Securities, or the method of
determining those rates, the interest payment dates and, for Registered
Debt Securities, the Regular Record Dates;
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v. the places where payments may be made on the Debt Securities;
vi. any mandatory or optional redemption provisions applicable to the Debt
Securities;
vii. any sinking fund or analogous provisions applicable to the Debt
Securities;
viii. any conversion or exchange provisions applicable to the Debt
Securities;
ix. any terms for the attachment to the Debt Securities of warrants,
options or other rights to purchase or sell our securities;
x. the portion of principal amount of the Debt Security payable upon
acceleration of maturity if other than the principal amount of such Debt
Securities;
xi. any deletions of, or changes or additions to, the Events of Default or
covenants applicable to the Debt Securities;
xii. if other than U.S. dollars, the currency or currencies, including
European Currency Units, the euro and other composite currencies, in
which payments on the Debt Securities will be payable (which currencies
may be different for principal, premium and interest payments) and
whether the holder may elect payment to be made in a different
currency;
xiii. the method of determining the amount of any payments on the Debt
Securities which are linked to an index;
xiv. whether the Debt Securities will be issued in fully registered form
without coupons ("Registered Debt Securities") or in bearer form, with
or without coupons ("Bearer Debt Securities"), or any combination of
these, and whether they will be issued in the form of one or more
global securities (each a "Global Debt Security") in temporary or
definitive form;
xv. any terms relating to the delivery of the Debt Securities if they are to
be issued upon the exercise of warrants;
xvi. whether and on what terms we will pay additional amounts to holders of
the Debt Securities that are not U.S. persons in respect of any tax,
assessment or governmental charge withheld or deducted and, if so,
whether and on what terms we will have the option to redeem the Debt
Securities rather than pay the additional amounts; and
xvii. any other specific terms of the Debt Securities.
(Sections 202 and 301)
Unless otherwise specified in the applicable prospectus supplement, (x) the
Debt Securities will be Registered Debt Securities and (y) Debt Securities
denominated in U.S. dollars will be issued, in the case of Registered Debt
Securities, in denominations of $1,000 or an integral multiple of $1000 and, in
the case of Bearer Debt Securities, in denominations of $5,000. Debt Securities
may bear legends required by United States Federal tax law and regulations.
(Section 401)
If any of the Debt Securities are sold for any foreign currency or currency
unit or if any payments on the Debt Securities is payable in any foreign
currency or currency unit, the prospectus supplement will contain any
restrictions, elections, tax consequences, specific terms and other information
with respect to such Debt Securities and such foreign currency or currency unit.
Some of the Debt Securities may be issued as original issue discount Debt
Securities (the "Original Issue Discount Securities"). Original Issue Discount
Securities bear no interest or bear interest at below-market rates and will be
sold at a discount below their stated principal amount. The prospectus
supplement will also contain any special tax, accounting or other information
relating to Original Issue Discount Securities or relating to certain other
kinds of Debt Securities that may be offered, including
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Debt Securities linked to an index or payable in currencies other than U.S.
dollars.
EXCHANGE, REGISTRATION AND TRANSFER
Debt Securities may be transferred or exchanged at the corporate trust
office of the security registrar or at any other office or agency maintained by
us for such purposes, without the payment of any service charge, except for any
tax or governmental charge. (Section 404) The designated security registrar in
the United States for the Senior Debt Securities is The Chase Manhattan Bank
located at 450 West 33rd Street, New York, New York 10001. The security
registrar for the Subordinated Debt Securities will be designated in the
applicable prospectus supplement.
If Debt Securities are issuable as both Registered Debt Securities and
Bearer Debt Securities, the Bearer Debt Securities (with outstanding coupons,
except as provided below) will be exchangeable for Registered Debt Securities.
If a Bearer Debt Security with related coupons is surrendered in exchange for a
Registered Debt Security between a record date and the date set for the payment
of interest, the Bearer Debt Security will be surrendered without the coupon
relating to that interest payment and that payment will be made only to the
holder of the coupon when due.
In the event of any redemption in part of any series of Debt Securities, we
will not be required to:
i. issue, register the transfer of, or exchange, Debt Securities of any
series between the opening of business 15 Business Days before any
selection of Debt Securities of that series to be redeemed and the close
of business on:
a. if Debt Securities of the series are issuable only as Registered
Debt Securities, the day of mailing of the relevant notice of
redemption, and
b. if Debt Securities of the series are issuable as Bearer Debt
Securities, the day of the first publication of the relevant notice
of redemption or, if Debt Securities of the series are also issuable
as Registered Debt Securities and there is no publication, the day
of mailing of the relevant notice of redemption;
ii. register the transfer of, or exchange, any Registered Debt Security
selected for redemption, in whole or in part, except the unredeemed
portion of any Registered Debt Security being redeemed in part; or
iii. exchange any Bearer Debt Security selected for redemption, except to
exchange it for a Registered Debt Security which is simultaneously
surrendered for redemption. (Section 404)
PAYMENT AND PAYING AGENT
We will pay principal, interest and any premium on fully registered
securities in the designated currency or currency unit at the office of a
designated paying agent. Payment of interest on fully registered securities may
be made by check mailed to the persons in whose names the Debt Securities are
registered on days specified in the Indentures or any prospectus supplement.
(Sections 406 and 410)
We will pay principal, interest and any premium on bearer securities in the
designated currency or currency unit at the office of a designated paying agent
or agents outside of the United States. Payments will be made at the offices of
the paying agent in the United States only if the designated currency is US
dollars and payment outside of the United States is illegal or effectively
precluded. (Sections 410 and 1102) If any amount payable on any Debt Security or
coupon remains unclaimed at the end of two years after such amount became due
and payable, the Paying Agent will release any unclaimed amounts to us, and the
holder of the Debt Security or coupon will look only to us for payment. (Section
1103)
The designated paying agent in the United States for the Senior Debt
Securities is The Chase Manhattan Bank located at 450 West 33rd Street, New
York, New York 10001. The paying
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agent for the Subordinated Debt Securities will be designated in the applicable
prospectus supplement.
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more global certificates that will be deposited with a depositary
we will identify in a prospectus supplement. Global Debt Securities may be
issued in either registered or bearer form and in either temporary or definitive
form. All Global Debt Securities in bearer form will be deposited with a
depositary outside of the United States (a "Common Depositary"). We will
describe the specific terms of the depositary arrangement with respect to a
series of Debt Securities in the applicable prospectus supplement.
Other than with respect to payments, we may treat a person having a
beneficial interest in a definitive Global Debt Security as the holder of the
principal amount of Outstanding Debt Securities represented by the definitive
Global Debt Security as specified in a written statement delivered to the
Trustee by the holder of the definitive Global Debt Security, or, in the case of
a definitive Global Debt Security in bearer form, by Euro-clear or Cedel Bank
(as defined below). (Section 411) Neither we, the Trustee nor any of our
respective agents will be responsible for any aspect of the records relating to
or payments made on account of beneficial ownership interests in a Global Debt
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests. (Section 411) We anticipate that the
following provisions will apply to all depositary arrangements with a
depositary.
TEMPORARY GLOBAL SECURITIES
All or any portion of the Debt Securities of a series that are issuable as
Bearer Debt Securities initially may be represented by one or more temporary
Global Debt Securities, without interest coupons, to be deposited with a Common
Depositary in London for Morgan Guaranty Trust Company of New York, Brussels
Office, as operator of the Euro-clear System ("Euro-clear"), and Cedel Bank,
societe anonyme ("Cedel Bank") for credit to the accounts of the beneficial
owners of the Debt Securities (or to such other accounts as they may direct). On
and after an exchange date provided in the applicable prospectus supplement,
each temporary Global Debt Security will be exchangeable for definitive Debt
Securities in bearer form, registered form, definitive global bearer form or any
combination thereof, as specified in the prospectus supplement. No Bearer Debt
Security delivered in exchange for a portion of a temporary Global Debt Security
will be mailed or delivered to any location in the United States. (Sections 402
and 403)
Interest on a temporary Global Debt Security will be paid to Euro-clear
and/or Cedel Bank with respect to the portion held for its account only after
they deliver to the Trustee a certificate which states that such portion:
i. is not beneficially owned by a United States person,
ii. has not been acquired by or on behalf of a United States person or for
offer to resell or for resale to a United States person or any person
inside the United States, or
iii. if a beneficial interest has been acquired by a United States person,
(a) that such person is a financial institution (as defined in the
Internal Revenue Code of 1986, as amended (the "Code")), purchasing for
its own account or has acquired the Debt Security through a financial
institution and (b) that the Debt Securities are held by a financial
institution that has agreed in writing to comply with the requirements
of Section 165(j)(3)(A), (B) or (C) of the Code and the regulations
thereunder and that it did not purchase for resale inside the United
States.
The certificate must be based on statements provided by the beneficial
owners of interests in the temporary Global Debt Security. Each of Euro-clear
and Cedel Bank will credit the interest received by it to the accounts of the
beneficial owners of the Debt Security (or to
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such other accounts as they may direct). (Section 403)
"United States 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 an estate or trust with income subject to United
States Federal income taxation regardless of its source.
DEFINITIVE GLOBAL SECURITIES
BEARER SECURITIES. The applicable prospectus supplement will describe the
exchange provisions, if any, of Debt Securities issuable in definitive global
bearer form. We will not deliver any Bearer Debt Securities delivered in
exchange for a portion of a definitive Global Debt Security to any location in
the United States. (Section 404)
U.S. BOOK-ENTRY SECURITIES. Debt Securities of a series represented by a
definitive global Registered Debt Security and deposited with or on behalf of a
depositary in the United States ("U.S. Book-Entry Debt Securities") will be
represented by a definitive Global Debt Security registered in the name of the
depositary or its nominee. Upon the issuance of a Global Debt Security and the
deposit of the Global Debt Security with the depositary, the depositary will
credit, on its book-entry registration and transfer system, the respective
principal amounts represented by that Global Debt 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 for the sale of such U.S. Book-Entry Debt Securities or
by us, if such Debt Securities are offered and sold directly by us.
Ownership of U.S. Book-Entry Debt Securities will be limited to participants
or persons that may hold interests through participants. In addition, ownership
of U.S. Book-Entry Debt Securities will be evidenced only by, and the transfer
of that ownership will be effected only through, records maintained by the
depositary or its nominee for the definitive Global Debt Security or by
participants or persons that hold through participants.
So long as the depositary, or its nominee, is the registered owner of such
Global Debt Security, such depositary or nominee, as the case may be, will be
considered the sole owner or holder of the U.S. Book-Entry Debt Securities
represented by such Global Debt Security for all purposes under the Indenture.
Payment of principal of, and premium and interest, if any, on, U.S. Book-Entry
Debt Securities will be made to the depositary or its nominee as the registered
owner or the holder of the Global Debt Security representing such U.S.
Book-Entry Debt Securities. Owners of U.S. Book-Entry Debt Securities:
- will not be entitled to have such Debt Securities registered in their names,
- will not be entitled to receive physical delivery of the Debt Securities in
definitive form and
- will not be considered the owners or holders of those Debt Securities under
the Indenture.
The laws of some jurisdictions require that certain purchasers of securities
take physical delivery of such securities in definitive form. Such limits and
such laws impair the ability to purchase or transfer U.S. Book-Entry Debt
Securities.
We expect that the depositary for U.S. Book-Entry Debt Securities of a
series, upon receipt of any payment of principal of, or premium or interest, if
any, on, the related definitive Global Debt Security, will immediately credit
participants' accounts with payments in amounts proportionate to their
respective beneficial interests in the principal amount of such Global Debt
Security as shown on the records of such Depositary. We also expect that
payments by participants to owners of beneficial interests in such Global Debt
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 those participants.
8
CERTAIN COVENANTS OF THE COMPANY
LIMITATION ON MERGER, CONSOLIDATION AND CERTAIN SALES OF ASSETS. We may,
without the consent of the holders of the Debt Securities, merge into or
consolidate with any other corporation, or convey or transfer all or
substantially all of our properties and assets to another person provided that:
i. the successor is a U.S. corporation;
ii. the successor assumes on the same terms and conditions all the
obligations under the Debt Securities and the Indentures; and
iii. immediately after giving effect to the transaction, there is no default
under the applicable Indenture. (Section 901)
The remaining or acquiring corporation will be substituted for us in the
Indentures with the same effect as if it had been an original party to the
Indenture. (Section 902)
EVENT RISK. Except for the restrictions on Secured Indebtedness and Sale
and Leaseback Transactions described below under "Senior Debt Securities,"
neither Indenture limits our ability to enter into a highly leveraged
transaction or provides special protection to holders of Debt Securities in the
event of such a transaction.
SATISFACTION AND DISCHARGE; DEFEASANCE
We may be discharged from our obligations on the Debt Securities of any
series that have matured or will mature or be redeemed within one year if we
deposit with the Trustee enough cash to pay all the principal, interest and any
premium due to the stated maturity date or redemption date of the Debt
Securities and comply with certain other conditions set forth in the applicable
Indenture. (Section 501)
Each Indenture contains a provision that permits us to elect (i) to be
discharged after 90 days from all of our obligations (subject to limited
exceptions) with respect to any series of Debt Securities then outstanding
("defeasance") and/or (ii) to be released from our obligations under certain
covenants and from the consequences of an event of default resulting from a
breach of those covenants or a cross-default ("covenant defeasance"). To make
either of the above elections, we must deposit in trust with the Trustee money
and/or U.S. Government Obligations, if the Debt Securities are denominated in
U.S. dollars, and/or Foreign Government Securities if the Debt Securities are
denominated in a foreign currency, which through the payment of principal and
interest under their terms will provide sufficient money, without reinvestment,
to repay in full those Senior Debt Securities. As a condition to defeasance or
covenant defeasance, we must deliver to the Trustee an opinion of counsel that
the holders of the Debt Securities will not recognize income, gain or loss for
Federal income tax purposes as a result of the defeasance. (Section 503)
If either of the above events occur, the holders of the Debt Securities of
the series will not be entitled to the benefits of the Indenture, except for
registration of transfer and exchange of Debt Securities and replacement of
lost, stolen or mutilated Debt Securities. (Sections 501 and 503)
EVENTS OF DEFAULT, NOTICE AND WAIVER
If an Event of Default for any series of Debt Securities occurs and
continues, the Trustee or the holders of at least 25% in principal amount of the
Debt Securities of the series may declare the entire principal amount of all the
Debt Securities of that series to be due and payable immediately. Subject to
certain conditions, the declaration may be annulled and past defaults (except
uncured payment defaults and certain other specified defaults) may be waived by
the holders of a majority of the principal amount of the Debt Securities of that
series. (Sections 602 and 613)
Each Indenture defines an Event of Default with respect to any series of
Debt Securities as one or more of the following events:
i. failure to pay interest on any Debt Security of the series for 30 days
when due;
9
ii. failure to pay the principal or any premium on any Debt Securities of
the series when due;
iii. failure to make any sinking fund payment for 30 days when due;
iv. failure to perform any other covenant in the Debt Securities of such
series or in the applicable Indenture with respect to Debt Securities
of such series for 90 days after being given notice; and
v. certain events of bankruptcy, insolvency and reorganization.
An Event of Default for a particular series of Debt Securities does not
necessarily constitute an Event of Default for any other series of Debt
Securities issued under an Indenture. (Section 601)
Each Indenture requires the Trustee to, within 90 days after the occurrence
of a default known to it with respect to any outstanding series of Debt
Securities, give the holders of that series notice of the default if uncured or
not waived. However, the Trustee may withhold this notice if it determines in
good faith that the withholding of this notice is in the interest of those
holders, except that the Trustee may not withhold this notice in the case of a
payment default. The term "default" for the purpose of this provision means any
event that is, or after notice or lapse of time or both would become, an Event
of Default with respect to Debt Securities of that series. (Section 702)
Other than the duty to act with the required standard of care during an
Event of Default, a Trustee is not obligated to exercise any of its rights or
powers under the applicable Indenture at the request or direction of any of the
holders of Debt Securities, unless the holders have offered to the Trustee
reasonable indemnification. (Section 703) Each Indenture provides that the
holders of a majority in principal amount of outstanding Debt Securities of any
series may in certain circumstances direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or other power conferred on the Trustee. (Section 612)
Each Senior Indenture includes a covenant that we will file annually with
the Trustee a certificate of no default, or specifying any default that exists.
(Section 1106)
MODIFICATION OF THE INDENTURES
We and the Trustee may modify the Indentures without the consent of the
holders for limited purposes, including adding to our covenants or Events of
Default, establishing forms or terms of Debt Securities, curing ambiguities and
other purposes which do not adversely affect the holders in any material
respect. (Section 1001)
We and the Trustee may make modifications and amendments to each Indenture
with the consent of the holders of a majority in principal amount of the
outstanding Debt Securities of all affected series. However, without the consent
of each affected holder, no modification may:
i. change the Stated Maturity of any Debt Security;
ii. reduce the principal, premium (if any) or rate of interest on any Debt
Security;
iii. change any place of payment or the currency in which any Debt Security
is payable;
iv. impair the right to enforce any payment after the Stated Maturity or
Redemption Date;
v. adversely affect the terms of any conversion right;
vi. reduce the percentage of holders of outstanding Debt Securities of any
series required to consent to any modification, amendment or waiver
under the Indenture;
vii. change any of our obligations, with respect to outstanding Debt
Securities of a series, to maintain an office or agency in the places
and for the purposes specified in the Indenture for such series; or
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viii. change the provisions in the Indenture that relate to its modification
or amendment.
(Section 1002)
MEETINGS
The Indentures contain provisions for convening meetings of the holders of
Debt Securities of a series. (Section 1401) A meeting may be called at any time
by the Trustee and also, upon request, by us or the holders of at least 10% in
principal amount of the outstanding Debt Securities of such series, in any such
case upon notice given in accordance with "Notices" below. (Section 1402)
Persons holding a majority in principal amount of the outstanding Debt
Securities of a series will constitute a quorum at a meeting. A meeting called
by us or the Trustee that did not have a quorum may be adjourned for not less
than 10 days, and if there is not a quorum at the adjourned meeting, the meeting
may be further adjourned for not less than 10 days. Except for any consent which
must be given by the holders of each Debt Security affected by certain
modifications or amendments of the Indenture (which we have described above
under "Modification of the Indentures"), any resolution presented at a 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 Debt Securities of
that series. But any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action which may be
made, given or taken by the holders of a specified percentage, which is equal to
or less than a majority, in principal amount of outstanding Debt Securities of a
series may be adopted at a meeting at which a quorum is present by the
affirmative vote of the holders of such specified percentage in principal amount
of the outstanding Debt Securities of that series. Any resolution passed or
decision taken at any meeting of holders of Debt Securities of any series duly
held in accordance with an Indenture will be binding on all holders of Debt
Securities of that series and the related coupons. However, the Indentures
provide that if any action is taken with respect to any consent, waiver or other
action which the Indentures expressly provide may be given by the holders of a
specified percentage of outstanding Debt Securities of all series affected by
the modification or amendment (acting as one class), only the principal amount
of outstanding Debt Securities of any series represented at a meeting at which a
quorum is present and voting in favor of such action will be counted for
purposes of calculating the aggregate principal amount of outstanding Debt
Securities of all series affected by the modification or amendment favoring such
action. (Section 1404)
NOTICES
In most instances, notices to holders of Bearer Debt Securities will be
given by publication at least once in a daily newspaper in The City of New York
and in London and in such other city or cities as may be specified in such
Bearer Debt Securities and will be mailed to such persons whose names and
addresses were previously filed with the applicable Trustee, within the time
prescribed for the giving of such notice. Notice to holders of Registered Debt
Securities will be given by mail to the addresses of such holders as they appear
in the Security Register. (Section 106)
TITLE
Title to any Bearer Debt Securities and any related coupons will pass by
delivery. We, the Trustee and any agent of ours or the Trustee may treat the
holder of any Bearer Debt Security or related coupon and, prior to due
presentment for registration of transfer, the registered owner of any Registered
Debt Security (including Registered Debt Securities in global registered form),
as the absolute owner of that Security (whether or not such Debt Security or
coupon shall be overdue and notwithstanding any notice to the contrary) for the
purpose of making payment and for all other purposes. (Section 407)
REPLACEMENT OF SECURITIES COUPONS
Debt Securities or coupons that have been mutilated will be replaced by us
at the expense of the holder upon surrender of such mutilated Debt Security or
coupon to the security registrar.
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Debt Securities or coupons that become destroyed, stolen or lost will be
replaced by us at the expense of the holder upon delivery to the security
registrar of evidence of its destruction, loss or theft satisfactory to us and
the security registrar. In the case of a destroyed, lost or stolen Debt Security
or coupon, the holder of the Debt Security or coupon may be required to
indemnify the security registrar and us before a replacement Debt Security will
be issued. (Section 405)
GOVERNING LAW
The Indentures, the Debt Securities and the coupons will be governed by, and
construed under, the laws of the State of New York.
CONCERNING THE TRUSTEES
We may from time to time maintain lines of credit, and have other customary
banking relationships, with the Senior Trustee or the Subordinated Trustee.
SENIOR DEBT SECURITIES
The Senior Debt Securities will be unsecured and will rank equally with all
of our other unsecured and non-subordinated debt.
CERTAIN COVENANTS IN THE SENIOR INDENTURE
LIMITATION ON SECURED INDEBTEDNESS. We will not, and will not permit any
Restricted Subsidiary to, create, assume, incur or guarantee any Secured
Indebtedness without securing the Senior Debt Securities equally and ratably
with, or prior to, such Secured Indebtedness unless (i) the aggregate amount of
all Secured Indebtedness that the Senior Debt Securities are not secured equally
and ratably with and (ii) the discounted present value of all net rentals
payable under leases entered into in connection with Sale and Leaseback
Transactions (as defined below) entered into after July 15, 1985 (except those
leases entered into by a Restricted Subsidiary before the time it became a
Restricted Subsidiary) would not exceed 10% of Consolidated Net Tangible Assets.
(Section 1104 of Senior Indenture)
LIMITATION ON SALE AND LEASEBACK TRANSACTIONS. We will not, and will not
permit any Restricted Subsidiary to, enter any lease longer than three years
(except leases of newly acquired, improved or constructed property) covering any
of our Principal Property or any Restricted Subsidiary that is sold to any other
person in connection with such lease (a "Sale and Leaseback Transaction"),
unless either;
a. the sum of (i) the discounted present value of all net rentals payable
under all such leases entered into after July 15, 1985 (except those
leases entered into by a Restricted Subsidiary before the time it became
a Restricted Subsidiary) and (ii) the aggregate amount of all Secured
Indebtedness that the Senior Debt Securities are not secured equally and
ratably with does not exceed 10% of Consolidated Net Tangible Assets, or
b. an amount equal to the greater of (x) the net proceeds to us or a
Restricted Subsidiary from such sale and (y) the discounted present
value of all net rentals payable thereunder, is applied within 180 days
to the retirement of our long-term debt or a such debt of a Restricted
Subsidiary (other than such debt which is subordinated to the Senior
Debt Securities or which is owing to us or a Restricted Subsidiary).
(Section 1105 of Senior Indenture)
The holders of a majority in principal amount of all affected series of
outstanding Debt Securities may waive compliance with each of the above
covenants. (Section 1107 of Senior Indenture)
CERTAIN DEFINITIONS.
"Secured Indebtedness" will mean our indebtedness or indebtedness of a
Restricted Subsidiary for borrowed money secured by any lien upon (or in respect
of any conditional sale or other title retention agreement covering) any
Principal Property or any stock or indebtedness
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of a Restricted Subsidiary, but excluding from such definition all indebtedness:
i. outstanding on July 15, 1985, secured by liens (or arising from
conditional sale or other title retention agreements) existing on that
date;
ii. incurred after July 15, 1985 to finance the acquisition, improvement or
construction of property and either secured by purchase money mortgages
or liens placed on such property within 180 days of acquisition,
improvement or construction or arising from conditional sale or other
title retention agreements;
iii. secured by liens on Principal Property or on the stock or indebtedness
of Restricted Subsidiaries, and, in either case, existing at the time
of acquisition thereof;
iv. owing to us or any Restricted Subsidiary;
v. secured by liens (or conditional sale or other title retention devices)
existing at the time a corporation became or becomes a Restricted
Subsidiary in the case of a corporation which shall have become or
becomes a Restricted Subsidiary after July 15, 1985;
vi. arising from any Sale and Leaseback Transaction;
vii. incurred to finance the acquisition or construction of property secured
by liens in favor of any country or any political subdivision thereof;
and
viii. constituting any replacement, extension or renewal of any such
indebtedness (to the extent such indebtedness is not increased).
"Principal Property" will mean land, land improvements, buildings and
associated factory, laboratory and office equipment (excluding all products that
is marketed by us or any or our subsidiaries) constituting a manufacturing,
development, warehouse, service or office facility owned by or leased to us or a
Restricted Subsidiary, located within the United States and having an
acquisition cost plus capitalized improvements in excess of 0.15% of
Consolidated Net Tangible Assets as of the date of such determination, other
than any such property financed through the issuance of tax-exempt governmental
obligations, or which the Board of Directors determines is not of material
importance to us and our Restricted Subsidiaries taken as a whole, or in which
the interest of us and all of our subsidiaries does not exceed 50%.
"Consolidated Net Tangible Assets" will mean the total assets of us and our
subsidiaries, less current liabilities and certain intangible assets (not
including program products).
"Restricted Subsidiary" will mean:
i. any of our subsidiaries which has substantially all its property in the
United States, which owns or is a lessee of any Principal Property and
in which our investment and the investment of our subsidiaries exceeds
0.15% of Consolidated Net Tangible Assets as of the date of such
determination, other than certain financing subsidiaries and
subsidiaries formed or acquired after July 15, 1985 for the purpose of
acquiring the stock, business or assets of another person and that have
not and do not acquire all or any substantial part of our business or
assets or the business or assets of any Restricted Subsidiary; and
ii. any other subsidiary the Board of Directors may designate as a
Restricted Subsidiary.
(Section 101 of Senior Indenture)
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SUBORDINATED DEBT SECURITIES
The Subordinated Debt Securities will be unsecured. The Subordinated Debt
Securities will be subordinate in right of payment to all Senior Indebtedness.
(Section 1501 of Subordinated Indenture) In addition, claims of creditors of our
subsidiaries, including trade creditors, secured creditors and creditors holding
guarantees issued by our subsidiaries, and claims of preferred stockholders of
our subsidiaries generally will have priority with respect to the assets and
earnings of such subsidiaries over the claims of our creditors, including
holders of the Subordinated Debt Securities, even though such obligations may
not constitute Senior Indebtedness. The Subordinated Debt Securities, therefore,
will be effectively subordinated to creditors (including trade creditors) and
preferred stockholders of our subsidiaries.
The Subordinated Indenture defines "Senior Indebtedness" to mean the
principal of, premium, if any, and interest on, (i) all indebtedness for money
borrowed by us (including all indebtedness of another person for money borrowed
that we guarantee) other than the Subordinated Debt Securities, whether
outstanding on the date of execution of the Subordinated Indenture or thereafter
created, assumed or incurred, unless such indebtedness expressly states to have
the same rank as the Subordinated Debt Securities or to rank junior to the
Subordinated Debt Securities; and (ii) any deferrals, renewals or extensions of
any such Senior Indebtedness, except that Senior Indebtedness will not include:
i. any of our obligations to our subsidiaries;
ii. any liability for Federal, state, local or other taxes owed or owing by
us;
iii. any accounts payable or other liability to trade creditors arising in
the ordinary course of business (including guarantees thereof or
instruments evidencing such liabilities);
iv. any indebtedness, guarantee or obligation of ours which is expressly
subordinate or junior in right of payment in any respect to any other
indebtedness, guarantee or obligation of ours, including any senior
subordinated indebtedness and any subordinated obligations;
v. any obligations with respect to any capital stock; or
vi. any indebtedness incurred in violation of the Subordinated Indenture.
There is no limitation on our ability to issue additional Senior
Indebtedness. The Senior Debt Securities constitute Senior Indebtedness under
the Subordinated Indenture. The Subordinated Debt Securities will rank equally
with our other subordinated indebtedness.
Under the Subordinated Indenture, no payment may be made on the Subordinated
Debt Securities and no purchase, redemption or retirement of any Subordinated
Debt Securities may be made in the event (i) any Senior Indebtedness is not paid
when due or (ii) the maturity of any Senior Indebtedness is accelerated as a
result of a default, unless the default has been cured or waived and the
acceleration has been rescinded or such Senior Indebtedness has been paid in
full. We may, however, pay the Subordinated Debt Securities without regard to
the foregoing if the Subordinated Trustee and us receive written notice
approving such payment from the Representatives of the holders of Senior
Indebtedness with respect to which either of the events set forth above has
occurred and is continuing. During the continuance of any default with respect
to any Senior Indebtedness pursuant to which its maturity may be accelerated
immediately without further notice or the expiration of any applicable grace
periods, we may not pay the Subordinated Debt Securities for 179 days after the
receipt by the Subordinated Trustee of written notice of such default from the
Representatives of the holders of Senior Indebtedness. If the holders of Senior
Indebtedness or the Representatives of such holders have not accelerated the
maturity of such Senior Indebtedness at the end of the 179 day period, we may
resume payments on the Subordinated Debt Securities. Not more than
14
one such notice may be given in any consecutive 360-day period, irrespective of
the number of defaults with respect to Senior Indebtedness during such period.
(Section 1503 of Subordinated Indenture)
In the event that we pay or distribute our assets to creditors upon a total
or partial liquidation, dissolution or reorganization of us or our property, the
holders of Senior Indebtedness will be entitled to receive payment in full of
the Senior Indebtedness before the holders of Subordinated Debt Securities are
entitled to receive any payment. Until the Senior Indebtedness is paid in full,
any payment or distribution to which holders of Subordinated Debt Securities
would be entitled but for the subordination provisions of the Subordinated
Indenture (other than distributions of stock and certain debt securities
subordinated to the Senior Indebtedness) will be made to holders of the Senior
Indebtedness as their interests may appear. (Section 1502 of Subordinated
Indenture) If a distribution is made to holders of Subordinated Debt Securities
that, due to the subordination provisions, should not have been made to them,
such holders of Subordinated Debt Securities are required to hold it in trust
for the holders of Senior Indebtedness, and pay it over to them as their
interests may appear. (Section 1505 of Subordinated Indenture)
If payment of the Subordinated Debt Securities is accelerated because of an
Event of Default, either we or the Subordinated Trustee will promptly notify the
holders of Senior Indebtedness or the Representatives of such holders of the
acceleration. We may not pay the Subordinated Debt Securities until five
Business Days after the holders or the Representatives of the Senior
Indebtedness receive notice of such acceleration. Thereafter, we may pay the
Subordinated Debt Securities only if the subordination provisions of the
Subordinated Indenture otherwise permit payment at that time. (Section 1505 of
Subordinated Indenture)
As a result of the subordination provisions contained in the Subordinated
Indenture, in the event of insolvency, our creditors who are holders of Senior
Indebtedness may recover more, ratably, than the holders of Subordinated Debt
Securities, and our creditors who are not holders of Senior Indebtedness may
recover less, ratably, than holders of Senior Indebtedness and may recover more,
ratably, than the holders of Subordinated Indebtedness.
DESCRIPTION OF THE PREFERRED STOCK
The following is a description of certain general terms and provisions of
the Preferred Stock. The particular terms of any series of Preferred Stock will
be described in the applicable prospectus supplement.
The following summary of terms of our Preferred Stock is not complete. You
should refer to the provisions of our Certificate of Incorporation and the
certificate of amendment relating to each series of the Preferred Stock (the
"Certificate of Amendment"), which will be filed with the SEC at or prior to the
time of issuance of such series of the Preferred Stock.
We are authorized to issue up to 150,000,000 shares of Preferred Stock, par
value $.01 per share. As of September 30, 1998, 2,597,261 shares of Series A
7 1/2% Preferred Stock, liquidation preference $100 per share, were outstanding.
Subject to limitations prescribed by law, the Board of Directors is authorized
at any time to:
- issue one or more series of Preferred Stock;
- determine the designation for any series by number, letter or title that
shall distinguish the series from any other series of Preferred Stock; and
- determine the number of shares in any series.
The Board of Directors is authorized to determine, for each series of
Preferred Stock, and the prospectus supplement will set forth with respect to
such series the following information:
- whether dividends on that series of Preferred Stock will be cumulative,
noncumulative, or partially cumulative;
- the dividend rate (or method for determining the rate);
15
- the liquidation preference per share of that series of Preferred Stock,
if any;
- any conversion provisions applicable to that series of Preferred Stock;
- any redemption or sinking fund provisions applicable to that series of
Preferred Stock;
- the voting rights of that series of Preferred Stock, if any; and
- the terms of any other preferences or rights, if any, applicable to that
series of Preferred Stock.
DIVIDENDS
Holders of Preferred Stock will be entitled to receive, when, as and if
declared by the Board of Directors, cash dividends at the rates and on the dates
as set forth in the prospectus supplement. Except as set forth below, no
dividends will be declared or paid on any series of Preferred Stock unless full
dividends for all series of Preferred Stock (including cumulative dividends
still owing, if any) have been or contemporaneously are declared and paid. When
those dividends are not paid in full, dividends will be declared pro-rata so
that the amount of dividends declared per share on each series of Preferred
Stock will in all cases bear to each other series the same ratio that (x)
accrued dividends per share for each respective series of Preferred Stock bear
to (y) aggregate accrued dividends for all outstanding shares of Preferred
Stock. In addition, generally, unless all dividends on the Preferred Stock have
been paid, no dividends will be declared or paid on the Capital Stock and
generally we may not redeem or purchase any Capital Stock.
CONVERTIBILITY
No series of Preferred Stock will be convertible into, or exchangeable for,
other securities or property except as set forth in the applicable prospectus
supplement.
REDEMPTION AND SINKING FUND
No series of Preferred Stock will be redeemable or receive the benefit of a
sinking fund except as set forth in the applicable prospectus supplement.
LIQUIDATION
In the event we voluntarily or involuntarily liquidate, dissolve or wind up
our affairs, the holders of each series of Preferred Stock will be entitled to
receive the liquidation preference per share specified in the prospectus
supplement plus an amount equal to accrued and unpaid dividends, if any, before
any distribution to the holders of Capital Stock. If the amounts payable with
respect to Preferred Stock are not paid in full, the holders of Preferred Stock
will share ratably in any distribution of assets based upon the aggregate
liquidation preference for all outstanding shares for each series. After the
holders of shares of Preferred Stock are paid in full, they will have no right
or claim to any of our remaining assets.
VOTING
Except as indicated below or in the prospectus supplement, the holders of
Preferred Stock will not be entitled to vote. If the equivalent of six quarterly
dividends payable on any series of Preferred Stock is in default, the number of
directors constituting our Board of Directors will be increased by two and the
holders of such series of Preferred Stock, voting together as a class with all
other series of Preferred Stock entitled to vote on such election of directors,
will be entitled to elect those additional directors. In the event of such a
default, the Board of Directors will call a special meeting for the holders of
all affected series within 10 business days of the default for the purpose of
electing the additional directors. Alternatively, the holders of record of a
majority of the outstanding shares of all affected series who are entitled to
participate in the election of directors may elect such additional directors by
written consent. If all accumulated dividends on any series of Preferred Stock
have been paid in full, the holders of shares of such series will no longer have
the right to vote on directors and the term of office of each director so
elected will terminate and the number of our directors will, without further
action, be reduced by two.
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Unless otherwise specified in a prospectus supplement, the vote of the
holders of a majority of the outstanding shares of each series of Preferred
Stock voting together as a class, is required to authorize any amendment,
alteration or repeal of the Restated Certificate of Incorporation or any
Certificate of Amendment which would adversely affect the powers, preferences,
or special rights of the Preferred Stock including authorizing any class of
stock with superior dividend and liquidation preferences.
MISCELLANEOUS
The holders of Preferred Stock will have no preemptive rights. The Preferred
Stock, when issued, will be fully paid and nonassessable. Shares of Preferred
Stock that we redeem or otherwise reacquire will resume the status of authorized
and unissued shares of Preferred Stock undesignated as to series, and will be
available for subsequent issuance. There are no restrictions on repurchase or
redemption of the Preferred Stock while there is any arrearage on sinking fund
installments except as may be set forth in a prospectus supplement. Neither the
par value nor the liquidation preference is indicative of the price at which the
Preferred Stock will actually trade on or after the date of issuance. Payment of
dividends on any series of Preferred Stock may be restricted by loan agreements,
indentures and other transactions we may enter into.
NO OTHER RIGHTS
The shares of a series of Preferred Stock will not have any preferences,
voting powers or relative, participating, optional or other special rights
except as set forth above or in the prospectus supplement, the Certificate of
Incorporation or Certificate of Amendment or as otherwise required by law.
TRANSFER AGENT AND REGISTRAR
The transfer agent for each series of Preferred Stock will be described in
the prospectus supplement.
DESCRIPTION OF THE DEPOSITARY SHARES
We may, at our option, elect to offer fractional shares of Preferred Stock,
rather than full shares of Preferred Stock. If we do, we will issue to the
public receipts for Depositary Shares and each of these Depositary Shares will
represent a fraction (to be set forth in the prospectus supplement) of a share
of a particular series of Preferred Stock. Each owner of a Depositary Share will
be entitled, in proportion to the applicable fractional interest in shares of
Preferred Stock underlying that Depositary Share, to all rights and preferences
of the Preferred Stock underlying that Depositary Share. Those rights include
dividend, voting, redemption and liquidation rights.
The shares of Preferred Stock underlying the Depositary Shares will be
deposited with a bank or trust company selected by us (the "Depositary") under a
Deposit Agreement (the "Deposit Agreement") between us, the Depositary and the
holders of the Depositary Receipts (defined below). The Depositary will be the
transfer agent, registrar and dividend disbursing agent for the Depositary
Shares.
The Depositary Shares will be evidenced by depositary receipts issued
pursuant to the Depositary Agreement ("Depositary Receipts"). Holders of
Depositary Receipts agree to be bound by the Deposit Agreement, which requires
holders to take certain actions such as filing proof of residence and paying
certain charges.
The summary of terms of the Depositary Shares contained in this prospectus
is not complete. You should refer to the forms of the Deposit Agreement, our
Certificate of Incorporation and the Certificate of Amendment for the applicable
series of Preferred Stock that are, or will be, filed with the SEC.
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DIVIDENDS
The Depositary will distribute all cash dividends or other cash
distributions received in respect of the series of Preferred Stock underlying
the Depositary Shares to the record holders of Depositary Receipts in proportion
to the number of Depositary Shares owned by those holders on the relevant record
date, which will be the same date as the record date for the Preferred Stock.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of Depositary Receipts
that are entitled to receive the distribution, unless the Depositary determines
that it is not feasible to make the distribution. If this occurs, the Depositary
may, with our approval, adopt another method for the distribution, including
selling the property and distributing the net proceeds to the holders.
LIQUIDATION PREFERENCE
In the event of our voluntary or involuntary liquidation, dissolution or
winding up, the holders of each Depositary Share will be entitled to receive the
fraction of the liquidation preference accorded each share of the applicable
series of Preferred Stock, as set forth in the applicable prospectus supplement.
REDEMPTION
If a series of Preferred Stock underlying the Depositary Shares is subject
to redemption, the Depositary Shares will be redeemed from the proceeds received
by the Depositary resulting from the redemption, in whole or in part, of
Preferred Stock held by the Depositary. Whenever we redeem any Preferred Stock
held by the Depositary, the Depositary will redeem, as of the same redemption
date, the number of Depositary Shares representing the Preferred Stock so
redeemed. The Depositary will mail the notice of redemption to the record
holders of the Depositary Receipts promptly upon receiving the notice from us
and not less than 35 nor more than 60 days prior to the date fixed for
redemption of the Preferred Stock and the Depositary Shares.
VOTING
Upon receipt of notice of any meeting at which the holders of Preferred
Stock are entitled to vote, the Depositary will mail the information contained
in the notice of meeting to the record holders of the Depositary Receipts
underlying the Preferred Stock. Each record holder of those Depositary Receipts
on the record date (which will be the same date as the record date for the
Preferred Stock) will be entitled to instruct the Depositary as to the exercise
of the voting rights pertaining to the amount of Preferred Stock underlying that
holder's Depositary Shares. The Depositary will try, as far as practicable, to
vote the Preferred Stock underlying the Depositary Shares in accordance with
such instructions, and we will agree to take all action which may be deemed
necessary by the Depositary in order to enable the Depositary to do so. The
Depositary will not vote the Preferred Stock to the extent that it does not
receive specific instructions from the holders of Depositary Receipts.
WITHDRAWAL OF PREFERRED STOCK
Owners of Depositary Shares are entitled, upon surrender of Depositary
Receipts at the principal office of the Depositary and payment of any unpaid
amount due the Depositary, to receive the number of whole shares of Preferred
Stock underlying the Depositary Shares. Partial shares of Preferred Stock will
not be issued. Such holders of Preferred Stock will not be entitled to deposit
the shares under the Deposit Agreement or to receive Depositary Receipts
evidencing Depositary Shares for the Preferred Stock.
AMENDMENT AND TERMINATION OF DEPOSIT AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may be amended at any time and from time to
time by agreement between us and the Depositary. However, any amendment which
materially and adversely alters the rights of the holders of Depositary Shares
(other than any change in fees) will not be effective unless the amendment has
been approved by at least a
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majority of the Depositary Shares then outstanding. The Deposit Agreement may be
terminated by us or the Depositary only if (i) all outstanding Depositary Shares
have been redeemed or (ii) there has been a final distribution in respect of the
Preferred Stock in connection with our dissolution and such distribution has
been made to all the holders of Depositary Shares.
CHARGES OF DEPOSITARY
We will pay all transfer and other taxes and governmental charges arising
solely from the existence of the depositary arrangements. We will also pay
charges of the Depositary in connection with the initial deposit of the
Preferred Stock and the initial issuance of the Depositary Shares, any
redemption of the Preferred Stock and all withdrawals of Preferred Stock by
owners of Depositary Shares. Holders of Depositary Receipts will pay transfer,
income and other taxes and governmental charges and certain other charges as
provided in the Deposit Agreement to be for their accounts. In certain
circumstances, the Depositary may refuse to transfer Depositary Shares, may
withhold dividends and distributions and sell the Depositary Shares evidenced by
such Depositary Receipt if the charges are not paid.
MISCELLANEOUS
The Depositary will forward to the holders of Depositary Receipts all
reports and communications we deliver to the Depositary that we are required to
furnish to the holders of the Preferred Stock. In addition, the Depositary will
make available for inspection by holders of Depositary Receipts at the principal
office of the Depositary, and at such other places as it may from time to time
deem advisable, any reports and communications we deliver to the Depositary as
the holder of Preferred Stock.
Neither we nor the Depositary will be liable if either of us are prevented
or delayed by law or any circumstance beyond our control in performing our
respective obligations under the Deposit Agreement. Our obligations and those of
the Depositary will be limited to performance in good faith of our respective
duties under the Deposit Agreement. Neither we nor the Depositary will be
obligated to prosecute or defend any legal proceeding in respect of any
Depositary Shares or Preferred Stock unless satisfactory indemnity is furnished.
We and the Depositary may rely on written advice of counsel or accountants, on
information provided by holders of Depositary Receipts or other persons believed
in good faith to be competent to give such information and on documents believed
to be genuine and to have been signed or presented by the proper party or
parties.
RESIGNATION AND REMOVAL OF DEPOSITARY
The Depositary may resign at any time by delivering a notice to us of its
election to do so. We may remove the Depositary at any time. Any such
resignation or removal will take effect upon the appointment of a successor
Depositary and its acceptance of such appointment. The successor Depositary must
be appointed within 60 days after delivery of the notice for resignation or
removal and must be a bank or trust company having its principal office in the
United States of America and having a combined capital and surplus of at least
$150,000,000.
FEDERAL INCOME TAX CONSEQUENCES
Owners of the Depositary Shares will be treated for Federal income tax
purposes as if they were owners of the Preferred Stock underlying the Depositary
Shares. Accordingly, such owners will be entitled to take into account for
Federal income tax purposes income and deductions to which they would be
entitled if they were holders of such Preferred Stock. In addition, (i) no gain
or loss will be recognized for Federal income tax purposes upon the withdrawal
of Preferred Stock in exchange for Depositary Shares, (ii) the tax basis of each
share of Preferred Stock to an exchanging owner of Depositary Shares will, upon
such exchange, be the same as the aggregate tax basis of the Depositary Shares
exchanged, and (iii) the holding period for Preferred Stock in the hands of an
exchanging owner of Depositary Shares will include the period during which such
person owned such Depositary Shares.
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DESCRIPTION OF THE CAPITAL STOCK
As of the date of this prospectus, we are authorized to issue up to
1,875,000,000 shares of Capital Stock, $0.50 par value per share. As of
September 30, 1998, 922,851,792 shares of Capital Stock were outstanding.
DIVIDENDS. Holders of Capital Stock are entitled to receive dividends, in
cash, securities, or property, as may from time to time be declared by our Board
of Directors (subject to the rights of the holders of the preferred stock).
VOTING. Each holder of Capital Stock is entitled to one vote per share on
all matters requiring a vote of the stockholders (subject to the provisions of
our By-laws with respect to the closing of the transfer books and the fixing of
a record date).
RIGHTS UPON LIQUIDATION. In the event of our voluntary or involuntary
liquidation, dissolution, or winding up, the holders of Capital Stock shall be
entitled to share equally in our assets available for distribution after payment
in full of all debts and after the holders of preferred stock have received
their liquidation preferences in full.
MISCELLANEOUS. Shares of Capital Stock are not redeemable and have no
subscription, conversion or preemptive rights.
DESCRIPTION OF THE WARRANTS
We may issue Warrants for the purchase of Debt Securities, Preferred Stock
or Capital Stock. Warrants may be issued independently or together with Debt
Securities, Preferred Stock or Capital Stock and may be attached to or separate
from any offered Securities. Each series of Warrants will be issued under a
separate warrant agreement (a "Warrant Agreement") to be entered into between us
and a bank or trust company, as warrant agent (the "Warrant Agent"). The Warrant
Agent will act solely as our agent in connection with the Warrants and will not
have any obligation or relationship of agency or trust for or with any holders
or beneficial owners of Warrants. This summary of certain provisions of the
Warrants is not complete. You should refer to the provisions of the Warrant
Agreement that will be filed with the SEC in connection with the offering of
Warrants for the complete terms of the Warrant Agreement.
DEBT WARRANTS
The prospectus supplement relating to a particular issue of Warrants to
issue Debt Securities ("Debt Warrants") will describe the terms of the Debt
Warrants, including the following:
- the title of the Debt Warrants;
- the offering price for the Debt Warrants, if any;
- the aggregate number of the Debt Warrants;
- the designation and terms of the Debt Securities purchasable upon exercise of
the Debt Warrants;
- if applicable, the designation and terms of the Debt Securities that the Debt
Warrants are issued with and the number of Debt Warrants issued with each
Debt Security;
- if applicable, the date from and after which the Debt Warrants and any Debt
Securities issued with them will be separately transferable;
- the principal amount of Debt Securities that may be purchased upon exercise
of a Debt Warrant and the price at which the Debt Securities may be
purchased upon exercise (which may be payable in cash, securities or other
property);
- the dates on which the right to exercise the Debt Warrants will commence and
expire;
- if applicable, the minimum or maximum amount of the Debt Warrants that may be
exercised at any one time;
- whether the Debt Warrants represented by the Debt Warrant certificates or
Debt Securities that may be issued upon exercise of the Debt Warrants will
be issued in registered or bearer form;
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- information with respect to book-entry procedures, if any;
- the currency or currency units in which the offering price, if any, and the
exercise price are payable;
- if applicable, a discussion of material United States federal income tax
considerations;
- the antidilution provisions of the Debt Warrants, if any;
- the redemption or call provisions, if any, applicable to the Debt Warrants;
and
- any additional terms of the Debt Warrants, including terms, procedures, and
limitations relating to the exchange and exercise of the Debt Warrants.
STOCK WARRANTS
The prospectus supplement relating to a particular issue of Warrants to
issue Capital Stock or Preferred Stock will describe the terms of the Warrants,
including the following:
- the title of the Warrants;
- the offering price for the Warrants, if any;
- the aggregate number of the Warrants;
- the designation and terms of the Capital Stock or Preferred Stock that may be
purchased upon exercise of the Warrants;
- if applicable, the designation and terms of the Securities that the Warrants
are issued with and the number of Warrants issued with each Security;
- if applicable, the date from and after which the Warrants and any Securities
issued with the Warrants will be separately transferable;
- the number of shares of Capital Stock or Preferred Stock that may be
purchased upon exercise of a Warrant and the price at which such shares may
be purchased upon exercise;
- the dates on which the right to exercise the Warrants shall commence and
expire;
- if applicable, the minimum or maximum amount of the Warrants that may be
exercised at any one time;
- the currency or currency units in which the offering price, if any, and the
exercise price are payable;
- if applicable, a discussion of material United States federal income tax
considerations;
- the antidilution provisions of the Warrants, if any;
- the redemption or call provisions, if any, applicable to the Warrants; and
- any additional terms of the Warrants, including terms, procedures, and
limitations relating to the exchange and exercise of the Warrants.
PLAN OF DISTRIBUTION
We may sell the Securities (i) through underwriters, (ii) through agents or
(iii) directly to a limited number of institutional purchasers or to a single
purchaser. The applicable prospectus supplement will set forth the terms of the
offering of the Securities, including the following:
- the name or names of any underwriters;
- the purchase price and the proceeds we will receive from such sale;
- any underwriting discounts and other items constituting underwriters'
compensation;
- any initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers; and
- any securities exchanges on which the Securities of such series may be
listed.
If underwriters are used in the sale, the Securities will be acquired by the
underwriters for their own account and may be resold from time to time in one or
more transactions, including negotiated transactions, at a fixed public offering
price or at varying prices determined at the time of sale. The Securities may be
either offered to the public through underwriting syndicates represented by
managing underwriters or by underwriters without a
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syndicate. The obligations of the underwriters to purchase Securities will be
subject to certain conditions precedent and the underwriters will be obligated
to purchase all the Securities of a series if any are purchased. Any initial
public offering price and any discounts or concessions allowed or reallowed or
paid to dealers may be changed from time to time.
Securities may be sold directly by us or through agents designated by us
from time to time. Any agent involved in the offer or sale of the Securities in
respect of which this prospectus is delivered will be named, and any commissions
payable by us to such agent will be set forth, in the prospectus supplement.
Unless otherwise indicated in the prospectus supplement, any agent will be
acting on a best efforts basis for the period of its appointment.
We may authorize agents or underwriters to solicit offers by certain types
of institutions to purchase Securities from us at the public offering price set
forth in the prospectus supplement pursuant to delayed delivery contracts
providing for payment and delivery on a specified date in the future. The
conditions to these contracts and the commissions payable for solicitation of
such contracts will be set forth in the applicable prospectus supplement.
Agents and underwriters may be entitled to indemnification by us against
certain civil liabilities, including liabilities under the Securities Act of
1933, or to contribution with respect to payments which the agents or
underwriters may be required to make relating to such liabilities. Agents and
underwriters may be customers of, engage in transactions with, or perform
services for, us in the ordinary course of business.
Each series of Securities will be a new issue of securities with no
established trading market. Any underwriter may make a market in such
Securities, but 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.
LEGAL OPINIONS
The legality of the Securities will be passed upon by David S. Hershberg,
our Vice President and Assistant General Counsel. Mr. Hershberg, together with
members of his family, owns, has options to purchase and has other interests in
shares of our common stock.
EXPERTS
The consolidated financial statements incorporated in this prospectus by
reference to our Annual Report on Form 10-K for the year ended December 31, 1997
have been incorporated in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of that 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 statement sets forth the estimated amounts of expenses, other
than underwriting discounts, to be borne by us in connection with the offering
described in this Registration Statement:
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Our By-Laws (Article VI, Section 6) provide the following:
"The Corporation shall, to the fullest extent permitted by applicable law as
in effect at any time, indemnify any person made, or threatened to be made, a
party to an action or proceeding whether civil or criminal (including an action
or proceeding by or in the right of the Corporation or any other corporation of
any type or kind, domestic or foreign, or any partnership, joint venture, trust,
employee benefit plan or other enterprise, for which any director or officer of
the Corporation served in any capacity at the request of the Corporation), by
reason of the fact that such person or such person's testator or intestate was a
director or officer of the Corporation, or served such other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise in
any capacity, against judgments, fines, amounts paid in settlement and
reasonable expenses, including attorneys' fees actually and necessarily incurred
as a result of such action or proceeding, or any appeal therein. Such
indemnification shall be a contract right and shall include the right to be paid
advances of any expenses incurred by such person in connection with such action,
suit or proceeding, consistent with the provisions of applicable law in effect
at any time. Indemnification shall be deemed to be "permitted' within the
meaning of the first sentence hereof if it is not expressly prohibited by
applicable law as in effect at the time."
Our Certificate of Incorporation (Article ELEVEN) provides the following:
"Pursuant to Section 402(b) of the Business Corporation Law of the State of
New York, the liability of the Corporation's directors to the Corporation or its
stockholders for damages for breach of duty as a director shall be eliminated to
the fullest extent permitted by the Business Corporation Law of the State of New
York, as it exists on the date hereof or as it may hereafter be amended. No
amendment to or repeal of this Article shall apply to or have any effect on the
liability or alleged liability of any director of the Corporation for or with
respect to any acts or omissions of such director occurring prior to such
amendment or repeal."
With certain limitations, Sections 721 through 726 of the New York Business
Corporation Law permit a corporation to indemnify a director or officer made a
party to an action (i) by a corporation or in its right in order to procure a
judgment in its favor unless he shall have breached his duties, or
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(ii) other than an action by or in the right of the corporation in order to
procure a judgment in its favor, if such director or officer acted in good faith
and in a manner he reasonably believed to be in or, in certain cases not opposed
to such corporation's interest and additionally, in criminal actions, had no
reasonable cause to believe his conduct was unlawful.
In addition, we maintain directors' and officers' liability insurance
policies.
ITEM 16. EXHIBITS.
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------------------------
*Filed electronically with this Registration Statement.
**Incorporated by reference to our Registration Statement on Form S-3
(Registration No. 33-50537).
***Incorporated by reference to Exhibit 3(i) of our Form 8-K dated May 7, 1997.
****Incorporated by reference to our Registration Statement on Form S-3
(Registration No. 33-49475).
*****To be filed as an Exhibit to a report pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934.
******Incorporated by reference to our Registration Statement on Form S-3
(Registration No. 33-65119).
*******Incorporated by reference to our Current Report on Form 8-K dated March
8, 1996.
********Incorporated by reference to exhibit 3 of our Form 10-Q for the fiscal
quarter ended September 30, 1998.
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 (other than as provided
in the proviso and instructions to Item 512(a) of Regulation S-K) (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; 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.
(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 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.
(5) 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 Trust Indenture Act.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described in Item 15 above, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission, such indemnification is against public policy as expressed
in the Act and is,
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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 in the successful defense
of any action, suit or proceeding) is asserted by such officer, director 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 of whether or not such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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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, on the 13th day of January, 1999.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
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