As filed with the Securities and Exchange Commission on October 10, 2001
Registration No. 333-
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BRUNSWICK CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 36-0848180
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
1 N. Field Ct.
Lake Forest, Illinois 60045-4811
(847) 735-4700
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
---------------------------
Marschall Smith
Brunswick Corporation
Vice President, General Counsel and Secretary
1 N. Field Ct.
Lake Forest, Illinois 60045-4811
(847) 735-4700
(Name, address, including zip code and telephone number,
including area code of agent for service)
---------------------------
with copies to:
Ronald A. Cami, Esq.
Cravath, Swaine & Moore
825 Eighth Avenue
New York, NY 10019
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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, as
determined by market conditions and other factors.
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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[Footnotes on next page]
CALCULATION OF REGISTRATION FEE
======================================================================================================================
TITLE OF PROPOSED PROPOSED
EACH CLASS OF MAXIMUM MAXIMUM AMOUNT OF
SECURITIES TO AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
BE REGISTERED REGISTERED(1)(3) PER UNIT(3) OFFERING PRICE(2)(3) FEE(3)(12)
------------------------------- ------------------- --------------------- ---------------------- ---------------------
Debt Securities (4)(8)
Preferred Stock (5)(8)
Depository Shares (6)(8)
Common Stock (7)(8)
Warrants (9)
Stock Purchase Contracts (10)
Stock Purchase Units (11)
Total $450,000,000 (13) 100 % $450,000,000 (13) $112,500.00 (12)
=============================== =================== ===================== ====================== =====================
PURSUANT TO RULE 429 UNDER THE SECURITIES ACT OF 1933, THE PROSPECTUS INCLUDED
IN THIS REGISTRATION STATEMENT RELATES TO THE SECURITIES REGISTERED UNDER THIS
REGISTRATION STATEMENT AND ALSO INCLUDES THE $150,000,000 UNSOLD PORTION OF
SECURITIES OF THE REGISTRANT PREVIOUSLY REGISTERED UNDER THE REGISTRANT'S
REGISTRATION STATEMENT ON FORM S-3 (NO. 333-9997). THIS REGISTRATION STATEMENT
CONSTITUTES POST-EFFECTIVE AMENDMENT NO. 1 TO THE REGISTRANT'S REGISTRATION
STATEMENT ON FORM S-3 (NO. 333-9997).
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 SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
==============================================================================
(1) The amount to be registered is in United States dollars or the equivalent
of United States dollars in one or more foreign currencies, foreign
currency units or composite currencies. The securities registered under
this registration statement may be sold separately, together or as units
with other securities registered under this registration statement and
may include hybrid securities consisting of a combination of features of
any of the securities listed in the table.
(2) The proposed maximum aggregate offering price has been estimated solely
for the purpose of calculating the registration fee in accordance with
Rule 457(o) of the Securities Act.
(3) Pursuant to General Instruction II.D of Form S-3, this table lists each
of the classes of securities being registered and the aggregate proceeds
to be raised, but does not specify by each class information as to the
amount to be registered, proposed maximum offering price per unit and
proposed maximum aggregate offering price.
(4) Subject to note (13) below, there is being registered under this
registration statement an indeterminate principal amount of debt
securities as may be sold from time to time.
(5) Subject to note (13) below, there is being registered under this
registration statement an indeterminate number of shares of preferred
stock as may be sold from time to time.
(6) Subject to note (13) below, there is being registered under this
registration statement an indeterminate number of depository shares to be
evidenced by depository receipts issued pursuant to a deposit agreement.
In the event the Registrant elects to offer to the public fractional
interests in shares of preferred stock registered under this registration
statement, depository receipts will be distributed to those persons
purchasing such fractional interests and the shares of preferred stock
will be issued to the depository under the deposit agreement.
(7) Subject to note (13) below, there is being registered under this
registration statement an indeterminate number of shares of common stock,
par value $0.75 per share, as may be sold from time to time. The common
stock being registered under this registration statement also includes
preferred stock purchase rights related to the common stock. An
indeterminate number of shares of common stock may also be issued by the
Registrant upon settlement of the stock purchase contracts or stock
purchase units of the Registrant.
(8) Subject to note (13) below, there is being registered under this
registration statement an indeterminate number of shares of debt
securities, preferred stock, depository shares and common stock, as shall
be issuable upon conversion or redemption, or upon the exercise of
warrants registered under this registration statement, of debt
securities, preferred stock or depository shares, as the case may be,
registered under this registration statement.
(9) Subject to note (13) below, there is being registered under this
registration statement an indeterminate amount and number of warrants,
representing rights to purchase debt securities, preferred stock or
common stock registered under this registration statement.
(10) Subject to note (13) below, there is being registered under this
registration statement an indeterminate number of stock purchase
contracts, as may be sold from time to time.
(11) Subject to note (13) below, there is being registered under this
registration statement an indeterminate number of stock purchase units,
as may be sold from time to time.
(12) The prospectus included in this registration statement also relates to
the $150,000,000 unsold portion of securities previously registered under
Brunswick Corporation's registration statement on Form S-3 (File No.
333-9997). Brunswick Corporation initially filed registration statement
No. 333-9997 on August 12, 1996.
(13) In no event will the aggregate offering price of all securities issued
from time to time pursuant to this registration statement exceed
$450,000,000 or the equivalent of $450,000,000 in one or more foreign
currencies, foreign currency units or composite currencies.
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PROSPECTUS
SUBJECT TO COMPLETION, DATED October 10, 2001
$600,000,000
BRUNSWICK CORPORATION
DEBT SECURITIES
COMMON STOCK
PREFERRED STOCK
DEPOSITORY SHARES
STOCK PURCHASE CONTRACTS
STOCK PURCHASE UNITS
WARRANTS
HYBRID SECURITIES COMBINING ELEMENTS OF THE FOREGOING
[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 is not permitted.]
This prospectus contains a general description of the securities that we
may offer for sale. The specific terms of the securities will be contained in
one or more supplements to this prospectus. Read this prospectus and any
supplement carefully before you invest.
Our common stock is listed on the New York Stock Exchange under the
trading symbol "BC".
---------------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is
a criminal offense.
The date of this prospectus is October 10, 2001.
TABLE OF CONTENTS
About This Prospectus.................................................. 2
Where You Can Find More Information.................................... 3
Documents Incorporated by Reference.................................... 3
Statement Regarding Forward-Looking Information........................ 4
Description of Brunswick............................................... 5
Use of Proceeds........................................................ 6
Ratio of Earnings to Fixed Charges..................................... 6
General Description of Securities...................................... 6
Description of Debt Securities......................................... 7
Description of Capital Stock........................................... 15
Description of Depository Shares....................................... 18
Description of Warrants................................................ 22
Description of Stock Purchase Contracts and Stock Purchase Units....... 25
Plan of Distribution................................................... 25
Legal Opinions......................................................... 26
Experts................................................................ 26
ABOUT THIS PROSPECTUS
To understand the terms of the securities offered by this prospectus, you
should carefully read this prospectus and any related prospectus supplement.
You should also read the documents referred to under the heading "Where You
Can Find More Information" for information on Brunswick Corporation and its
financial statements. Our principal offices are located at 1 N. Field Ct.,
Lake Forest, Illinois, 60045-4811 (telephone: 847-735-4700).
We are filing this registration statement with the Securities and
Exchange Commission, or SEC, under a "shelf" registration procedure. Under
this procedure, we may offer and sell from time to time, any of the following
securities, in one or more series, in amounts that will provide up to
$600,000,000, or the equivalent in one or more foreign currencies, including
composite currencies, in initial aggregate public offering prices:
debt securities,
preferred stock,
depository shares,
common stock,
warrants,
stock purchase contracts,
stock purchase units, and
hybrid securities containing elements of the foregoing.
The securities may be sold for United States dollars, foreign-denominated
currency or currency units. Amounts payable with respect to any securities may
be payable in United States dollars or foreign-denominated currency or
currency units as specified in the applicable prospectus supplement.
This prospectus provides you with a general description of the securities
that 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.
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The prospectus supplement may also contain information about any material
United States federal income tax considerations relating to the securities
covered by the prospectus supplement.
We may sell securities to underwriters who will sell the securities to
the public on terms fixed at the time of sale. In addition, the securities may
be sold by us directly or through dealers or agents designated from time to
time. If we, directly or through agents, solicit offers to purchase the
securities, we reserve the sole right to accept and, together with our agents,
to reject, in whole or in part, any offer.
The prospectus supplement will also contain, with respect to the
securities being sold, the names of any underwriters, dealers or agents,
together with the terms of offering, the compensation of any underwriters and
the net proceeds to us.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus incorporates documents by reference which are not
presented in or delivered with this prospectus.
All documents that we file pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Securities Exchange Act of 1934 after the date of this prospectus and
prior to the termination of the offering of the securities described in this
prospectus are incorporated by reference into and are deemed to be a part of
this prospectus from the date of filing of those documents.
You should rely only on the information contained in this document or the
information to which you have been referred. We have not authorized anyone to
provide you with any additional information.
The following documents, which we have filed with the Securities and
Exchange Commission, are incorporated by reference into this prospectus:
o Our Annual Report on Form 10-K for the year ended December 31, 2000,
filed March 9, 2001; and
o Our quarterly reports on Form 10-Q for the quarterly periods ended
March 31, 2001, filed May 14, 2001; and June 30, 2001, filed
August 14, 2001.
Any statement contained in a document incorporated or deemed to be
incorporated by reference into this prospectus will be deemed to be modified
or superseded for purposes of this prospectus to the extent that a statement
contained in this prospectus or any other subsequently filed document that is
deemed to be incorporated by reference into this prospectus modifies or
supersedes the statement. Any statement so modified or superseded will not be
deemed, except as so modified or superseded, to constitute a part of this
prospectus.
DOCUMENTS INCORPORATED BY REFERENCE
The documents incorporated by reference into this prospectus are
available from us upon your request. We will provide a copy of any and all of
the information that is incorporated by reference into this prospectus to any
person, without charge, upon written or oral request. If exhibits to the
documents incorporated by reference into this prospectus are not themselves
specifically incorporated by reference into this prospectus, then the exhibits
will not be provided.
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Requests for documents relating to us should be directed to:
Marschall Smith
Brunswick Corporation
1 N. Field Ct.
Lake Forest, Illinois 60045-4811
(847) 735-4700
We have filed reports, proxy statements and other information with the
SEC. You may read and copy any materials that we file with the SEC at any of
the public reference facilities maintained by the SEC:
o 450 Fifth Street, N.W., Washington, D.C. 20549; or
o 300 West Madison Street, Suite 1400, Chicago, Illinois 60661.
You may also obtain copies of these materials by mail at prescribed rates from
the Public Reference Room of the SEC, 450 Fifth Street N.W., Washington, D.C.
20549. Call the SEC at 1-800-SEC-0330 for further information. The SEC also
maintains a website that contains reports, proxy statements and other
information about us. The address of the SEC website is http://www.sec.gov.
You may also inspect reports, proxy statements and other information
concerning us at the New York Stock Exchange, Inc., 11 Broad Street, New York,
New York 10005; The Chicago Stock Exchange, One Financial Place, 440 South La
Salle Street, Chicago, Illinois 60605; the Pacific Exchange, Inc., 301 Pine
Street, San Francisco, California 94104; and The London Stock Exchange
Limited, The Stock Exchange, London EC2N 1HP, England.
STATEMENT REGARDING FORWARD-LOOKING INFORMATION
The SEC encourages companies to disclose forward-looking information so
that investors can better understand a company's future prospects and make
informed investment decisions. This prospectus contains such "forward-looking
statements" within the meaning of the Private Securities Litigation Reform Act
of 1995. These statements may be made directly in this prospectus and may also
be made a part of this prospectus by reference to other documents filed with
the Securities and Exchange Commission by us, which is known as "incorporation
by reference".
Words such as "anticipate", "estimate", "expect", "project", "intend",
"plan", "believe" and words and terms of similar substance used in connection
with any discussion of future operating or financial performance identify
forward-looking statements. All forward-looking statements are management's
current expectations of future events and are subject to a number of factors
and uncertainties that could cause actual results to differ materially from
those described in the forward-looking statements. Investors are cautioned not
to place undue reliance on the forward-looking statements, which speak only as
of the date of this prospectus or the date of the document incorporated by
reference into this prospectus. We are not under any obligation, and expressly
disclaim any obligation, to update or alter any forward-looking statements,
whether as a result of new information, future events or otherwise.
Forward-looking statements included in this prospectus may involve
certain risks and uncertainties that may cause actual results to differ
materially from expectations as of the date of this filing. Particular risks
or uncertainties, if any, will be described in the applicable prospectus
supplement.
All subsequent forward-looking statements attributable to us or any
person acting on our behalf are expressly qualified in their entirety by the
cautionary statements contained or referred to in this section.
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DESCRIPTION OF BRUNSWICK
We market and manufacture leading recreation brands including Mercury and
Mariner outboard engines; Mercury MerCruiser sterndrive and inboard engines;
Mercury Precision Parts and marine accessories; Sea Ray, Bayliner, Maxum and
Sealine pleasure boats; Baja high-performance boats; Boston Whaler and Trophy
offshore fishing boats; Princecraft deck and pontoon boats; Life Fitness,
Hammer Strength and ParaBody fitness equipment; Brunswick family bowling
centers, equipment and consumer products; and Brunswick billiards tables.
MERCURY MARINE GROUP
The Mercury Marine Group markets and manufactures a full range of
outboard engines, sterndrives, inboard engines and propless water-jet
propulsion systems under the Mercury, Mariner, Mercury MerCruiser, Mercury
Racing, Mercury SportJet and Mercury Jet Drive brand names. A portion of
Mercury Marine's outboards, parts and accessories are sold to end-users
through marine retail dealers. The remaining outboard engines and virtually
all the sterndrives, inboard engines and water-jet propulsion systems are sold
either to independent boat builders or to our Brunswick Boat Group.
The Mercury Marine Group manufactures and distributes in international
markets a range of aluminum, fiberglass and inflatable boats produced either
by, or for, Mercury in Australia, France, Norway, Poland, Portugal and Sweden.
These boats are marketed under the brand names Armor, Arvor, Askaladden,
Bermuda, Mercury, Ornvik, Quicksilver, Savage, Uttern and Valiant.
BRUNSWICK BOAT GROUP
The Brunswick Boat Group markets and manufactures fiberglass pleasure
boats under the Sea Ray, Bayliner, Maxum and Sealine brands; high-performance
boats under the Baja brand; offshore fishing boats under the Boston Whaler and
Trophy brands; and deck and pontoon boats under the Princecraft brand. The
Brunswick Boat Group purchases outboard motors, gasoline sterndrives and
gasoline inboard engines from our Mercury Marine Group.
RECREATION BUSINESS
Our Recreation business includes our Life Fitness exercise products and
our Brunswick Bowling & Billiards businesses.
Life Fitness designs, markets and manufactures a full line of reliable,
high-quality cardiovascular fitness equipment (including treadmills, total
body cross trainers and stationary bikes) and strength-training fitness
equipment under the Life Fitness, Hammer Strength and ParaBody brands. Life
Fitness serves the commercial (health clubs, gyms, professional sports teams,
military, government, corporate and university facilities) and high-end
consumer markets.
Brunswick Bowling & Billiards manufactures and designs bowling products,
including bowling balls and capital equipment, which includes bowling lanes,
automatic pinsetters, ball returns and furniture units. Brunswick Bowling &
Billiards also sells computerized bowling-scoring equipment.
Brunswick Bowling & Billiards operates approximately 120 family bowling
centers in the United States, Canada and Europe, and its joint ventures
operate approximately 20 additional centers in Asia. Its bowling centers offer
bowling and, depending on size and location, the following activities and
services: billiards, video games, pro shops, children's playrooms, restaurants
and cocktail lounges. Brunswick Bowling & Billiards centers offer Cosmic
Bowling, a glow-in-the-dark bowling experience that transforms bowling into a
new and enhanced form of recreation.
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Brunswick Bowling & Billiards also designs and markets billiards tables,
billiards balls, cues and related accessories under our Brunswick brand.
Brunswick Bowling & Billiards serves the domestic and international commercial
and consumer billiards markets.
USE OF PROCEEDS
Unless otherwise described in the applicable prospectus supplement, we
intend to use the net proceeds from the sale of the securities for general
corporate purposes, including repayment of existing debt, expansion of
existing businesses, acquisition of new businesses and investments in other
new business opportunities as they may arise. Pending such use, the net
proceeds may be temporarily invested in short-term investments.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our ratio of earnings to fixed charges for
the periods indicated:
Six Months
Ended June 30, Year Ended December 31,
-------------- ------------------------------------
2001 2000 2000 1999 1998 1997 1996
---- ---- ---- ---- ---- ---- ----
Ratio of earnings to
fixed charges 4.8x 6.5x 5.0x 4.0x 4.2x 3.9x 6.9x
For purposes of computing the ratio of earnings to fixed charges,
earnings were calculated by adding:
o fixed charges (excluding capitalized interest) and
o earnings from continuing operations before income taxes;
and then subtracting:
o the undistributed earnings of affiliates.
Fixed charges consist of:
o interest and other financial charges;
o estimated interest portion of rental expense; and
o capitalized interest.
GENERAL DESCRIPTION OF SECURITIES
We may offer under this prospectus: debt securities; common stock;
preferred stock; depository shares; stock purchase contracts; stock purchase
units; warrants to purchase debt securities, common stock or preferred stock;
or any combination of the foregoing, either individually or as units consisting
of two or more securities. The aggregate offering price of securities that we
offer under this prospectus will not exceed $600,000,000.
The following description of the terms of these securities sets forth
some of the general terms and provisions of securities that we may offer. The
particular terms of securities offered by any prospectus supplement and the
extent, if any, to which the general terms set forth below do not apply to
those
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securities, will be described in the related prospectus supplement. In
addition, if we offer securities as units, the terms of the units will be
described in the applicable prospectus supplement.
DESCRIPTION OF DEBT SECURITIES
Our debt securities are to be issued under an Indenture dated as of March
15, 1987, between us and The Bank of New York, as successor trustee, a copy of
which is incorporated by reference into this registration statement as an
exhibit. The following summary of certain provisions of the Indenture does not
purport to be complete and is subject to, and is qualified in its entirety by
reference to, all the provisions of the Indenture, including the definitions
in the Indenture of certain terms. Wherever particular sections or defined
terms of the Indenture are referred to, it is intended that such sections or
defined terms shall be incorporated into this prospectus by reference. All
capitalized terms included in this summary shall have the same meanings
specifically set forth in the Indenture, which are generally summarized below
under the heading "Definitions of Certain Terms".
Our debt securities may be issued as part of a stock purchase unit. Stock
purchase units are summarized in this prospectus under the heading
"Description of Stock Purchase Contracts and Stock Purchase Units".
GENERAL
The Indenture does not limit the aggregate principal amount of the debt
securities or of any particular series of debt securities and provides that
debt securities may be issued from time to time in one or more series. The
Indenture provides that debt securities will be issued in fully registered
form in denominations which may be specified for each particular series, but
in the absence of such specification, shall be in denominations of $1,000 and
integral multiples of $1,000 or the equivalent of $1,000 in a
foreign-denominated currency. Under the Indenture, debt securities will be
unsecured and will rank on a parity with our other unsecured and
unsubordinated Indebtedness. Unless otherwise described in the prospectus
supplement relating to the debt securities of any particular series, there are
no covenants or provisions contained in the Indenture that may afford the
holders of our debt securities protection in the event of a highly leveraged
transaction involving us. Any such highly leveraged transaction may adversely
affect holders of our debt securities.
Reference is made to the prospectus supplement relating to the debt
securities of any particular series for the following terms:
o the title of the debt securities;
o any limit on the aggregate principal amount of the debt
securities;
o the date or dates on which the debt securities will mature;
o the rate or rates (which may be fixed or variable) per annum at
which the debt securities will bear interest, if any, and the date
from which any such interest will accrue;
o the times at which any such interest will be payable;
o the terms and conditions, if any, on which a particular series of
debt securities shall be convertible into or exchangeable for,
shares of any class or classes of our capital stock or of a third
party, including the price or prices or the rate or rates of
conversion or exchange and the method, if any, of adjusting the same
and whether such conversion is mandatory or optional;
7
o the currency or currencies for which debt securities may be
purchased and currency or currencies in which principal of and any
interest on the debt security may be payable;
o if the currency for which debt securities may be purchased, or in
which principal of and interest on the debt securities may be
payable is at the purchaser's election, the manner in which such an
election may be made;
o the dates, if any, on which, and the price or prices at which, the
debt securities may, pursuant to any mandatory or optional sinking
fund provisions, be redeemed by us and other detailed terms and
provisions of any such sinking funds;
o the date, if any, after which, and the price or prices at which, the
debt securities may, pursuant to any optional redemption provisions,
be redeemed at our option or that of the holder of our debt
security, and other detailed terms and provisions of any such
optional redemption; and
o any other terms of the debt securities.
Unless otherwise indicated in the prospectus supplement relating to a
particular series of the debt securities, principal, interest and premium, if
any, will be payable at offices or agencies that we will maintain in Chicago,
Illinois, the Borough of Manhattan in the City and State of New York and such
other place or places as we may designate pursuant to the provisions of the
Indenture; provided that, at our option, payment of any interest may be made
by check mailed to the address of the Person entitled to the interest as it
appears in the security register. Debt securities may be presented for
registration of transfer or exchange at the office of the trustee in the
Borough of Manhattan and at such other place or places as we may designate
pursuant to the provisions of the Indenture.
Debt securities may be issued under the Indenture as original issue
discount debt securities to be offered and sold at a substantial discount from
the principal amount of the debt security. Special United States federal
income tax, accounting and other considerations applicable to the debt
securities will be described in the prospectus supplement relating to any such
original issue discount debt securities.
RESTRICTIONS ON SECURED DEBT
The Indenture provides that we will not, and we will not cause or permit
a Restricted Subsidiary to, incur, issue, assume or guarantee any Secured Debt
unless the debt securities will be secured by any Mortgage which secures such
Secured Debt, so long as such Secured Debt or any other Indebtedness, except
for the debt securities, secured by such Mortgage shall exist, equally and
ratably with, or prior to, any and all other obligations and Indebtedness
which shall be so secured. The foregoing restrictions do not apply if after
giving effect to all such Secured Debt, the aggregate amount of such Secured
Debt would not exceed 10 percent of consolidated net tangible assets. The
aggregate Attributable Debt of the Sale and Leaseback Transactions in
existence at that time (excluding Sale and Leaseback Transactions the proceeds
of which shall have been or will be used to retire Funded Debt) shall be
included along with the aggregate amount of Secured Debt for the purposes of
the computations in the last sentence.
In addition, the restriction in the last paragraph will not apply to the
following and the following will be excluded from constituting Secured Debt in
any computation described in the immediately preceding paragraph:
o any Mortgage on any property hereafter acquired or constructed by us
or a Restricted Subsidiary to secure or provide for the payment of
all or any part of the purchase price or construction cost of such
property, including, but not limited to, any Indebtedness incurred
by us or a Restricted Subsidiary prior to, at the time of, or within
180 days after the later of the acquisition, the
8
completion of construction (including any improvements on an
existing property) or the commencement of commercial operation of
such property, which Indebtedness is incurred for the purpose of
financing all or any part of the purchase price of such property or
construction or improvements on the property;
o the acquisition of property subject to any Mortgage upon such
property existing at the time of acquisition of the property,
whether or not assumed by us or such Restricted Subsidiary;
o any Mortgage existing on the property, outstanding shares of capital
stock or Indebtedness, of a corporation at the time such corporation
becomes a Restricted Subsidiary;
o Mortgages on property or shares of capital stock or Indebtedness of
a corporation existing at the time such corporation is merged with
or consolidated into us or a Restricted Subsidiary or at the time of
a sale, lease or other disposition of the properties of a
corporation or firm as an entirety or substantially as an entirety
to us or a Restricted Subsidiary (provided, however, that no such
Mortgage shall extend to any other of our property or such
Restricted Subsidiary's property prior to such acquisition or to
other property thereafter acquired other than additions or
improvements to such acquired property);
o Mortgages on our property or a Restricted Subsidiary's property in
favor or at the request of the United States of America or any state
of the United States, or any department, agency or instrumentality
or political subdivision of the United States of America or any
state of the United States (including Mortgages to secure
Indebtedness of the pollution control or industrial revenue bond
type), in order to permit us or a Restricted Subsidiary to perform
any contract or subcontract made by it with or at the request of any
of the foregoing, or to secure partial, progress, advance or other
payments pursuant to any tender, bid, contract, regulation or
statute, or to secure any Indebtedness incurred for the purpose of
financing all or any part of the purchase price or the cost of
constructing or improving the property subject to such Mortgages;
o any Mortgage on any property or assets of any Restricted Subsidiary
to secure Indebtedness owing by it to us or to a Restricted
Subsidiary;
o any Mortgage existing on March 15, 1987;
o any extension, renewal or replacement (or successive extensions,
renewals or replacements) in whole or in part of any Mortgage
permitted by the foregoing, inclusive, provided, however, that the
principal amount of Secured Debt secured by such Mortgage shall not
exceed the principal amount of Secured Debt so secured at the time
of such extension, renewal or replacement, and that such extension,
renewal or replacement shall be limited to the property which
secured the Mortgage so extended, renewed or replaced and additions
or improvements to such property;
o carriers', warehousemen's, landlords', mechanics' and materialmen's
Mortgages incurred in the ordinary course of our business or a
Restricted Subsidiary for sums not yet due or being contested in
good faith;
o Mortgages for taxes or assessments or governmental charges or levies
on property owned by us or any of our Restricted Subsidiaries, if
such taxes, assessments, governmental charges or levies shall not at
the time be due and payable, or if the same thereafter can be paid
without penalty, or if the same are being contested in good faith;
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o Mortgages to secure payment of worker's compensation, customs duties
or insurance premiums, to secure (or in lieu of) customs, surety or
appeal bonds, and for purposes similar to any of the above in the
regular course of business; and
o Mortgages created by or resulting from any litigation or legal
proceeding which at the time is currently being contested in good
faith.
RESTRICTIONS ON SALE AND LEASEBACK TRANSACTIONS
The Indenture provides that we will not, and we will not permit any
Restricted Subsidiary to, enter into a Sale and Leaseback Transaction unless
either (1) we or such Restricted Subsidiary would be entitled, pursuant to the
provisions outlined in "Restrictions on Secured Debt", to incur Secured Debt
in an amount equal to the Attributable Debt of such Sale and Leaseback
Transaction without equally and ratably securing the debt securities, or (2)
we or such Restricted Subsidiary, within 120 days, apply an amount (which
amount shall equal the greater of (a) the net proceeds of the sale or transfer
of the property leased pursuant to such Sale and Leaseback Transaction or (b)
the fair value of such property at the time of entering into such Sale and
Leaseback Transaction as determined by our board of directors) to the
retirement (other than any mandatory retirement) of the Funded Debt as shown
on our and our Restricted Subsidiaries' most recent consolidated balance
sheet, which Funded Debt, in our case, is not subordinated to the prior
payment of the debt securities of any series. In lieu of applying all or any
part of such amount to the retirement of Funded Debt, we, at our option, may
reduce the amount which we shall be required to apply to such retirement by
(1) delivering to the Trustee debt securities theretofore purchased or
otherwise acquired by us or (2) receiving credit for debt securities
theretofore redeemed at our option or redeemed through optional sinking fund
payments, which debt securities have not previously been made the basis for
the reduction of a mandatory sinking fund payment. Any debt securities which
shall have been made the basis for a reduction in the amount of Funded Debt
required to be retired shall not be available as a credit against mandatory
sinking fund payments.
RESTRICTIONS ON MERGER, CONSOLIDATION AND SALE, TRANSFER OR LEASE OF ASSETS
The Indenture provides that we shall not consolidate with or merge into
any other corporation, or sell, transfer or lease our properties and assets
substantially as an entirety to any Person, nor may any other Person
consolidate with or merge into us, or sell or transfer or lease its properties
and assets substantially as an entirety to us, unless (i) the Person, if other
than us, formed by or resulting from any such consolidation or merger or which
shall have purchased, received the transfer of, or leased, such property and
assets shall be a corporation organized and existing under the laws of the
United States of America, any state of the United States or the District of
Columbia and shall expressly assume, by a supplemental indenture, the payment
of the principal of, premium, and interest, in each case if any, on all the
debt securities and the performance and observance of the covenants of the
Indenture, (ii) immediately thereafter no event of default and no event which
after notice or lapse of time, or both, would become an event of default shall
have happened or be continuing, and (iii) if, as a result of consolidation,
merger, sale, transfer or lease, properties or assets of ours shall cause the
outstanding debt securities to be secured equally and ratably with, or prior
to, such Mortgage. Notwithstanding the provisions summarized in this
paragraph, we may, without complying with such provisions, sell, transfer or
lease all of our property and assets to another corporation organized and
existing under the laws of the United States of America or any state of the
United States or the District of Columbia if, immediately after giving effect
to such sale, transfer or lease and the receipt of the consolidation, such
corporation is one of our wholly-owned Restricted Subsidiaries and we would be
permitted under the Indenture to incur at least $1 of Secured Debt.
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EVENTS OF DEFAULT
The Indenture defines the following as events of default with respect to
any series of debt securities:
o a default for 30 days in payment of any interest installment due on
the debt securities of such series;
o a default in payment of principal or premium, if any, on any of the
debt securities of such series or in making any mandatory sinking
fund payment with respect to debt securities of such series;
o a default in performance of any other covenant in the debt
securities of such series or in the Indenture for 60 days after
notice to us by the trustee, or to us and the trustee by the holders
of at least 25 percent in aggregate principal amount of our
outstanding debt securities of such series;
o certain events of our bankruptcy, insolvency and reorganization; or
o such additional events of default as may be established with respect
to the debt securities of any series in the manner provided in the
Indenture.
If an event of default occurs and is continuing, the trustee or the holders of
at least 25 percent of the aggregate principal amount of our outstanding debt
securities of such series may declare all the debt securities of such series
to be due and payable immediately, subject to the right of the holders of a
majority of the aggregate principal amount of the outstanding debt securities
of such series to waive such default and rescind such declaration in certain
limited circumstances.
The Indenture contains a provision entitling the trustee, subject to the
duty of the trustee during default to act with the required standard of care,
to be indemnified by holders of the debt securities of any series before
proceeding to exercise any right or power under the Indenture at the request
of such holders. The Indenture also provides that the holders of a majority of
the aggregate principal amount of our outstanding debt securities of any
series may direct the time, method and place of conducting any proceeding for
any remedy available to the trustee, or exercising any trust or power
conferred on the trustee with respect to the debt securities of such series.
The Indenture contains a covenant that we will file annually with the
trustee a certificate of no default or a certificate specifying any default
that exists.
MODIFICATION OF THE INDENTURE
The Indenture contains provisions permitting us and the trustee, with the
consent of the holders of not less than 66 2/3 percent of the aggregate
principal amount of our outstanding debt securities of any series that would
be affected by any such supplemental indenture, to execute supplemental
indentures adding any provisions to or changing or eliminating any of the
provisions of the Indenture or modifying the rights of the holders of our debt
securities of such series, except that no such supplemental indenture may:
o extend the fixed maturity of any debt security;
o reduce the rate or extend the time of payment of any interest on a
debt security;
o reduce the principal amount of the debt security or any premium on
the debt security;
o extend the time of or reduce the amount of any mandatory sinking
fund payment;
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o change the currency of payment of such debt security; or
o impair the rights of the holder of such debt security to institute
suit for the enforcement of any payment of principal, premium or
interest, if any, on such debt security,
in each case without the consent of the holder of each such debt security so
affected. Further, no such supplemental indenture may reduce the aforesaid
percentage of debt securities of any series, the holders of which are required
to consent to any such supplemental indenture, without the consent of the
holders of all outstanding debt securities of such series.
DEFEASANCE AND DISCHARGE
The Indenture provides that we, at our option:
o will be discharged from any and all obligations in respect of the
debt securities (except for certain obligations such as
obligations to (a) register the transfer or exchange of debt
securities, (b) replace stolen, lost or mutilated debt securities;
and (c) maintain paying agencies) and after such discharge the
holders of debt securities shall look only to the trustee for
payment from the deposit in trust of the debt security; or
o need not comply with certain restrictive covenants of the Indenture
(including those described under "Restrictions on Secured Debt",
"Restrictions on Sale and Leaseback Transactions" and "Restrictions
on Merger, Consolidation and Sale, Transfer or Lease of Assets"),
in each case if we deposit with the trustee, in trust, money or U.S.
Government Obligations (or, in the case of debt securities denominated in a
foreign currency, Foreign Government Obligations), or any combination of U.S.
and Foreign Government Obligations, which through the payment of interest on
the debt security and principal of the debt security in accordance with their
terms will provide money in an amount sufficient to pay all the principal
(including any mandatory sinking fund payments) of and premium, if any, and
interest on the debt securities on the dates such installments of interest or
principal are due in accordance with the terms of the Indenture and the debt
securities, provided that the trustee shall have been irrevocably instructed
to apply such money or the proceeds of such U.S. Government Obligations (or
Foreign Government Obligations) to the payment of such installments of
principal of, and premium, if any, and interest with respect to the debt
securities.
To exercise the option referred to in the first bullet of the preceding
paragraph, we are required to deliver to the trustee an opinion of outside
counsel of nationally recognized standing or a ruling from or published by the
United States Internal Revenue Service to the effect that the discharge would
not cause holders of debt securities to recognize income, gain or loss for
federal income tax purposes. To exercise the option referred to in the second
bullet of the preceding paragraph, we are not required to deliver to the
trustee an opinion of counsel or ruling to such effect. Defeasance provisions
relating to any debt securities denominated in euros will be set forth with
more particularity in the applicable prospectus supplement.
DEFINITIONS OF CERTAIN TERMS
The following definitions are more fully set forth in article one of the
Indenture:
"Attributable Debt" means, with respect to any Sale and Leaseback
Transaction at any particular time, the present value, discounted at a rate
per annum (compounded semi-annually) equal to the effective weighted-average
interest rate on the outstanding debt securities, of the obligation of the
lessee for rental payments (calculated in accordance with generally accepted
accounting principles) due during the remaining term of such lease (which may,
if in accordance with generally accepted accounting principles,
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include any period for which such lease has been extended or may, at the
option of the lessee, be extended). Such rental payments shall not include
amounts payable by the lessee for maintenance and repairs, insurance, taxes,
assessments and similar charges. In case of any lease which is terminable by
the lessee upon the payment of a penalty, such rental payments shall also
include such penalty, but no rent shall be considered as required to be paid
under such lease subsequent to the first date upon which it may be so
terminated.
"Consolidated Current Liabilities" means the aggregate of our and our
Restricted Subsidiaries' current liabilities appearing on our and our
Restricted Subsidiaries' most recent available consolidated balance sheet, all
in accordance with generally accepted accounting principles; but excludes any
of our and our Restricted Subsidiaries' obligations issued under a revolving
credit agreement or other similar agreement if the obligation issued under
such agreement matures by its terms within twelve months from the date of such
agreement. This exclusion does not apply to obligations that may be renewed,
extended, reborrowed or refunded at our or any of our Restricted Subsidiaries'
option for a term in excess of twelve months from the date of determination.
"Consolidated Net Tangible Assets" means Consolidated Tangible Assets
after deduction of Consolidated Current Liabilities.
"Consolidated Tangible Assets" means the aggregate of all of our and our
Restricted Subsidiaries' assets (including the value of all existing Sale and
Leaseback Transactions and any assets resulting from the capitalization of
other long-term lease obligations in accordance with generally accepted
accounting principles but excluding the value of assets or investment in any
of our Unrestricted Subsidiaries) appearing on our and our Restricted
Subsidiaries' most recent available consolidated balance sheet at net book
values, after deducting related depreciation, amortization and other valuation
reserves and excluding (a) any capital write-up resulting from reappraisals of
assets or of other investments after March 15, 1987, (other than a write-up of
any assets constituting part of the assets and business of another corporation
made in connection with the acquisition, direct or indirect, of the assets and
business of such other corporation), except as permitted in accordance with
generally accepted accounting principles, (b) treasury stock, and (c) patent
and trademark rights, goodwill, unamortized discounts and expenses and any
other intangible items, all in accordance with generally accepted accounting
principles.
"Foreign Government Obligations" means direct non-callable obligations
of, or non-callable obligations guaranteed by, (a) a government other than
that of the United States of America or (b) an agency of a government other
than that of the United States of America for the payment of which obligations
or guarantee the full faith and credit of such government is pledged.
"Funded Debt" of any corporation means any Indebtedness created, issued,
incurred, assumed or guaranteed by such corporation, whether secured or
unsecured, maturing more than one year after the date of determination of that
Indebtedness or which may by its terms be reborrowed, refunded, renewed or
extended to a time more than twelve months after the date of determination of
that Indebtedness.
"Indebtedness" means (a) any obligation for borrowed money, (b) any
obligation representing the deferred purchase price of property other than
accounts payable arising in connection with the purchase of inventory or
equipment on terms customary in the trade, (c) any obligation, whether or not
assumed, secured by a Mortgage on, or payable out of the proceeds or
production from, property now owned or hereafter acquired by the obligor, and
(d) any obligation in respect of lease rentals which under generally accepted
accounting principles would be shown on our and our Restricted Subsidiaries'
consolidated balance sheet as a liability item other than a current liability.
"Mortgage" means any mortgage, pledge, lien, charge, security interest,
conditional sale or other title retention agreement or other similar
encumbrance.
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"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision of such government or
agency.
"Principal Property" means any of our and our Restricted Subsidiaries'
manufacturing plants or other facilities, whether now owned or hereafter
acquired, which, in the opinion of our board of directors, is of material
importance to the business conducted by us and our Restricted Subsidiaries as
a whole.
"Restricted Subsidiary" means (a) any Subsidiary other than an
Unrestricted Subsidiary and (b) any Subsidiary which was an Unrestricted
Subsidiary but which, subsequent to March 15, 1987, is designated by our board
of directors to be a Restricted Subsidiary; provided, however, that we may not
designate any such Subsidiary to be a Restricted Subsidiary if we would
thereby breach any covenant contained in the Indenture (on the assumptions
that any outstanding Secured Debt of such Subsidiary was incurred at the time
of such designation and that any Sale and Leaseback Transaction to which such
Subsidiary is then a party was entered into at the time of such designation).
"Sale and Leaseback Transaction" means the sale or transfer (except to us
or one or more Restricted Subsidiaries) of any Principal Property owned or
leased by us or any Restricted Subsidiary on a date which is more than 120
days after the later of (a) the date of acquisition of such Principal Property
or (b) the date on which construction of such Principal Property shall have
been completed and full operation of such Principal Property shall have
commenced, with the intention of leasing back such Principal Property (except
a lease for a term of no more than 3 years entered into with the intent that
the use by us or such Restricted Subsidiary will be discontinued on or before
the expiration of the 3-year term).
"Secured Debt" means any Indebtedness which is secured by a Mortgage on
(a) any of our or our Restricted Subsidiaries' Principal Property or on (b)
any shares of capital stock or Indebtedness of any Restricted Subsidiary.
"Subsidiary" means any corporation of which at least a majority of the
outstanding stock of such corporation having ordinary voting power to elect a
majority of directors of the corporation (irrespective of whether stock of any
other class or classes of such corporation shall have or might have voting
power by reason of the happening of any contingency) is at the time, directly
or indirectly, owned or controlled by us or by one or more of our
Subsidiaries, or by us and one or more Subsidiaries.
"Unrestricted Subsidiary" means (a) any Subsidiary acquired or organized
after March 15, 1987, except for any such Subsidiary which is a successor,
directly or indirectly, to any Restricted Subsidiary, (b) any Subsidiary which
may acquire recreation centers from us or any Restricted Subsidiary and which
is principally engaged in the business of owning, leasing, operating or
constructing recreation centers, (c) any Subsidiary the principal business and
assets of which are located outside the United States of America, its
territories and possessions, (d) Centennial Assurance Company Ltd., a Bermuda
corporation, and (e) any Subsidiary substantially all the assets of which
consist of stock or Indebtedness of a Subsidiary or Subsidiaries of the
character described in clauses (a), (b) or (c), or identified in clause (d),
in each case unless and until any such Subsidiary shall have been designated
to be a Restricted Subsidiary pursuant to clause (b) of the definition of
"Restricted Subsidiary".
"U.S. Government Obligations" means direct non-callable obligations of,
or non-callable obligations guaranteed by, (a) the United States of America or
(b) an agency of the United States of America for the payment of which
obligations or guarantee the full faith and credit of the United States is
pledged.
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DESCRIPTION OF CAPITAL STOCK
GENERAL
Our authorized capital stock consists of 200,000,000 shares of common
stock, par value $0.75 per share, of which approximately 102,538,000 shares
were issued and 87,636,000 were outstanding, as of June 30, 2001, and
12,500,000 shares of preferred stock, par value $0.75 per share, none of which
are issued or outstanding.
COMMON STOCK
Each share of common stock is entitled to one vote at all meetings of
stockholders for the election of directors and all other matters submitted to
stockholder vote. The common stock does not have cumulative voting rights.
Accordingly, the holders of a majority of the outstanding shares of common
stock can elect all the directors if they choose to do so. Dividends may be
paid to the holders of common stock when, as and if declared by our board of
directors out of funds legally available for paying dividends. Our common
stock has no preemptive or similar rights. Upon the liquidation, dissolution
or winding up of our affairs, any assets remaining after provision for payment
of all liabilities would be distributed pro rata among holders of our common
stock. The shares of common stock currently outstanding are fully paid and
nonassessable. The shares of common stock outstanding are, and any shares of
our common stock offered by this prospectus will be upon issuance against full
payment of the purchase price of the common stock, fully paid and
nonassessable.
Our certificate of incorporation contains provisions requiring, with some
exceptions, any merger, consolidation, disposition of assets or similar
business combination with a person who owns 5 percent or more of the shares of
our stock entitled to vote in elections of our directors to be approved by the
affirmative vote of the holders of two-thirds of the shares of our stock
entitled to vote in elections of directors which are not beneficially owned by
such person. The certificate of incorporation also requires, with some
exceptions, that two independent experts conclude that the terms of any such
merger, consolidation, disposition of assets or similar business combination
are fair to unaffiliated stockholders and that the opinion of these experts be
included in a proxy statement mailed to stockholders. The foregoing provisions
may be amended only by the affirmative vote of the holders of two-thirds of
the shares of common stock entitled to vote in the elections of our directors,
excluding any shares held by a person who owns 5 percent or more of the
outstanding shares.
Our certificate of incorporation:
o divides our board of directors into three classes that serve
staggered three-year terms;
o sets the number of directors at not less than six and not more than
15;
o permits the number of directors to be increased or decreased within
the foregoing range by vote of 80 percent of the directors or the
holders of 80 percent of the outstanding shares of our stock
entitled to vote in elections of directors;
o authorizes us to establish the procedures for advance notice for
stockholder nominations of directors in our By-laws;
o permits such nomination procedures to be amended only by vote of 80
percent of our directors or the holders of 80 percent of the
outstanding shares of our common stock entitled to vote in elections
of directors;
15
o gives our board of directors the exclusive power to fill interim
vacancies and to determine the qualifications of directors;
o prohibits the removal of directors without cause;
o requires that stockholder action be taken at a meeting of our
stockholders, except for action by written consents of the holders
of preferred stock authorized by our board of directors; and
o requires the affirmative vote of the holders of 80 percent of our
shares entitled to vote in elections of directors to amend the
foregoing provisions.
PREFERRED STOCK PURCHASE RIGHTS
On February 5, 1996, our board of directors declared a dividend
distribution of one preferred stock purchase right, or rights, for each
outstanding share of our common stock, pursuant to a Rights Agreement dated as
of February 5, 1996, by and between us and Harris Trust and Savings Bank.
Prior to the distribution date defined below, we will issue one right with
each new share of common stock so that all shares of common stock will have
rights attached. The following description does not purport to be complete and
is qualified in its entirety by reference to the Rights Agreement.
Each holder of rights under the Rights Agreement (but only after the
occurrence of a distribution date) may, until April 1, 2006, purchase one
one-thousandth of a share of our Series A Junior Participating Preferred
Stock, par value $0.75 per share, which we refer to in this prospectus as the
Series A Preferred Stock, at a purchase price of $85 per one one-thousandth
share, subject to adjustment. The rights will be represented by common stock
certificates and will not be exercisable, or transferable apart from our
common stock, until the earlier to occur of (i) the tenth day after our first
public announcement that a person has become an acquiring person (as defined
below) or (ii) the fifteenth business day (or such later date as the board of
directors may decide prior to such time as any person becomes an acquiring
person) after the commencement of (or a public announcement of the intention
to make) a tender offer or exchange offer that would result in such person or
group beneficially owning a total of 15 percent or more of our outstanding
common stock (the earlier of such dates is called the distribution date).
On the date that we announce that a person (other than us, any of our
subsidiaries or any of our or our subsidiaries' employee benefit plans)
together with related parties has acquired, or has obtained the right to
acquire, beneficial ownership of 15 percent or more of our outstanding common
stock (an acquiring person), each right under the Rights Agreement (other than
rights owned by the acquiring person and any transferees of the rights, each
of whose rights become void) will, subject to some exceptions, become a right
to buy, at the purchase price, that number of shares of our common stock
having a market value of twice the purchase price.
Under specified circumstances in which we are acquired in a merger or
other business combination transaction, or 50 percent or more of our
consolidated assets or earning power are sold, each holder of rights under the
Rights Agreement, other than the acquiring person, has the right to buy, at
the purchase price, common stock of the acquiring company (us, if we are the
surviving entity) having a market value of twice the purchase price.
The purchase price payable and the number of shares of our Series A
Preferred Stock or our common stock or other securities issuable upon exercise
of the rights are subject to adjustment in specified circumstances. At any
time prior to the time a person shall become an acquiring person, we may elect
to redeem the rights in whole, but not in part, at a price of $0.01 per right.
The rights will expire on April 1,
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2006, unless we redeem them earlier. Until a right is exercised, the holder of
the right will have no rights as one of our stockholders, including, without
limitation, the right to vote or to receive dividends.
The rights have certain anti-takeover effects. The rights will cause
substantial dilution to a person who attempts to acquire us without
conditioning any offer on the rights being redeemed or a substantial number of
rights being acquired. However, the rights will not interfere with a
transaction approved by our board of directors prior to the date upon which a
person has become a 15 percent stockholder, because the rights can be redeemed
until that time.
PREFERRED STOCK
Under our certificate of incorporation, our board of directors may direct
the issuance of up to 12,500,000 shares of our preferred stock in one or more
series and with rights, preferences, privileges and restrictions, including
dividend rights, voting rights, conversion rights, terms of redemption and
liquidation preferences, that may be fixed or designated by our board of
directors pursuant to a certificate of designation without any further vote or
action by our stockholders. As of the date of this prospectus, the board of
directors had designated 150,000 shares of the preferred stock as Series A
Junior Participating Preferred Stock for possible issuance in connection with
the rights. No other designations have been made. The issuance of preferred
stock may have the effect of delaying, deferring or preventing a change in our
control. Preferred stock, upon issuance against full payment of the purchase
price for the preferred stock, will be fully paid and nonassessable. We may
issue preferred stock as part of a stock purchase unit. Stock purchase units
are summarized in this prospectus under "Description of Stock Purchase
Contracts and Stock Purchase Units". The specific terms of a particular series
of our preferred stock will be described in the prospectus supplement relating
to that series. The description of our preferred stock set forth below and the
description of the terms of a particular series of our preferred stock set
forth in the related prospectus supplement do not purport to be complete and
are qualified in their entirety by reference to the certificate of designation
relating to that series.
The applicable prospectus supplement will contain a description of
certain United States federal income tax consequences relating to the purchase
and ownership of a series of preferred stock.
The rights, preferences, privileges and restrictions of our preferred
stock of each series will be fixed by the certificate of designation relating
to such series. A prospectus supplement, relating to each series, will specify
the following terms of the preferred stock:
o the maximum number of shares to constitute the series and the
distinctive designation of the series;
o the annual dividend rate, if any, on shares of the series, whether
such rate is fixed or variable or both, the date or dates from which
dividends will begin to accrue or accumulate and whether dividends
will be cumulative;
o the price at and the terms and conditions on which the shares of the
series may be redeemed, including the time during which shares of
the series may be redeemed and any accumulated dividends on shares
of the series that the holders of shares of the series shall be
entitled to receive upon the redemption of the series;
o the liquidation preference, if any, and any accumulated dividends on
the series, that the holders of shares of the series shall be
entitled to receive upon the liquidation, dissolution or winding up
of our affairs;
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o whether or not the shares of the series will be subject to operation
of a retirement or sinking fund, and, if so, the extent and manner
in which any such fund shall be applied to the purchase or
redemption of the shares of the series for retirement or for other
corporate purposes, and the terms and provisions relating to the
operation of such fund;
o the terms and conditions, if any, on which the shares of the series
shall be convertible into, or exchangeable for, shares of any other
class or classes of our capital stock or of a third party or of any
other series of the same class, including the price or prices or the
rate or rates of conversion or exchange and the method, if any, of
adjusting the same and whether such conversion is mandatory or
optional;
o the stated value of the shares of the series;
o the voting rights, if any, of the shares of the series;
o any or all other preferences and relative, participating, optional
or other special rights or qualifications, limitations or
restrictions of the series of preferred stock; and
o any other terms of the series.
In the event of any voluntary liquidation, dissolution or winding up of
our affairs, the holders of any series of any class of our preferred stock
shall be entitled to receive in full out of our assets, including our capital,
before any amount shall be paid or distributed among the holders of our common
stock or any other of our shares ranking junior to such series, the amounts
fixed by our board of directors with respect to such series and set forth in
the applicable prospectus supplement plus an amount equal to all dividends
accrued and unpaid on the series to the date of payment of the amount due
pursuant to such liquidation, dissolution or winding up of our affairs. After
payment to our holders of the preferred stock of the full preferential amounts
to which they are entitled, our holders of preferred stock, as such, shall
have no right or claim to any of our remaining assets.
If liquidating distributions shall have been made in full to all holders
of our preferred stock, our remaining assets shall be distributed among the
holders of any other classes or series of our capital stock ranking junior to
our preferred stock upon liquidation, dissolution or winding up, according to
their respective rights and preferences and in each case according to their
respective number of shares. The merger or consolidation of us into or with
any other corporation, or the sale, lease or conveyance of all or
substantially all of our assets, shall not constitute our dissolution,
liquidation or winding up.
DESCRIPTION OF DEPOSITORY SHARES
GENERAL
We may offer depository receipts for depository shares, each of which
will represent a fractional interest in a share of a particular series of a
class of our preferred stock, as specified in the applicable prospectus
supplement. Preferred stock of each series of each class represented by
depository shares will be deposited under a separate deposit agreement among
us, the preferred stock depository named in the deposit agreement and the
holders from time to time of our depository receipts. Subject to the terms of
the deposit agreement, each owner of a depository receipt will be entitled, in
proportion to the fractional interest of a share of the particular series of a
class of our preferred stock represented by the depository shares evidenced by
such depository receipt, to all the rights and preferences of the preferred
stock represented by such depository shares (including dividend, voting,
conversion, redemption and liquidation rights).
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The depository shares will be evidenced by depository receipts issued
pursuant to the applicable deposit agreement. Immediately following our
issuance and delivery of the preferred stock to the preferred stock
depository, we will cause the preferred stock depository to issue, on our
behalf, the depository receipts. Copies of the applicable form of deposit
agreement and depository receipt may be obtained from us upon request.
DIVIDENDS AND OTHER DISTRIBUTIONS
The preferred stock depository will distribute all cash dividends or
other cash distributions received in respect of the preferred stock to the
record holders of the depository receipts evidencing the related depository
shares in proportion to the number of such depository receipts owned by such
holder, subject to certain obligations of holders to file proofs, certificates
and other information and to pay certain charges and expenses to the preferred
stock depository.
In the event of a distribution other than in cash, the preferred stock
depository will distribute property received by it to the record holders of
depository receipts entitled to the property, subject to certain obligations
of holders to file proofs, certificates and other information and to pay
certain charges and expenses to the preferred stock depository, unless the
preferred stock depository determines that it is not feasible to make such
distribution, in which case the preferred stock depository may, with our
approval, sell such property and distribute the net proceeds from such sale to
such holders.
WITHDRAWAL OF SHARES
Upon surrender of the depository receipts at the corporate trust office
of the preferred stock depository (unless the related depository shares have
previously been called for redemption), the holders of the depository receipts
will be entitled to delivery at such office, to or upon such holder's order,
of the number of whole shares of preferred stock and any money or other
property represented by the depository shares evidenced by such depository
receipts. Holders of depository receipts will be entitled to receive whole
shares of the related preferred stock on the basis of the proportion of
preferred stock represented by each depository share as specified in the
applicable prospectus supplement, but holders of such preferred stock will not
thereafter be entitled to receive depository shares. If the depository
receipts delivered by the holder evidence a number of depository shares in
excess of the number of depository shares representing the number of shares of
preferred stock to be withdrawn, the preferred stock depository will deliver
to such holder at the same time a new depository receipt evidencing such
excess number of depository shares.
REDEMPTION OF DEPOSITORY SHARES
Whenever we redeem preferred stock held by the preferred stock
depository, the preferred stock depository will redeem as of the same
redemption date the number of depository shares representing the preferred
stock so redeemed, provided we shall have paid in full to the preferred stock
depository the redemption price of the preferred stock to be redeemed plus an
amount equal to any accrued and unpaid dividends (except, with respect to
noncumulative shares of preferred stock, dividends for the current dividend
period only) of the preferred stock to the date fixed for redemption. The
redemption price per depository share will be equal to the redemption price
and any other amounts per share payable with respect to the preferred stock.
If less than all the depository shares are to be redeemed, the preferred stock
depository will select the depository shares to be redeemed by lot.
After the date fixed for redemption, the depository shares so called for
redemption will no longer be deemed to be outstanding and all rights of the
holders of the depository receipts evidencing the depository shares so called
for redemption will cease, except the right to receive any moneys payable upon
such
19
redemption and any money or other property to which the holders of such
depository receipts were entitled upon such redemption upon surrender of the
depository receipts to the preferred stock depository.
VOTING OF THE UNDERLYING PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of our
preferred stock are entitled to vote, the preferred stock depository will mail
the information contained in such notice of meeting to the record holders of
the depository receipts evidencing the depository shares which represent such
preferred stock. Each record holder of depository receipts evidencing
depository shares on the record date (which will be the same date as the
record date for the preferred stock) will be entitled to instruct the
preferred stock depository as to the exercise of the voting rights pertaining
to the amount of preferred stock represented by such holder's depository
shares. The preferred stock depository will vote the amount of preferred stock
represented by such depository shares in accordance with such instructions,
and we will agree to take all reasonable action which may be deemed necessary
by the preferred stock depository in order to enable the preferred stock
depository to do so. The preferred stock depository will abstain from voting
the amount of preferred stock represented by such depository shares to the
extent it does not receive specific instructions from holders of our
depository receipts evidencing such depository shares.
LIQUIDATION PREFERENCE
In the event of our liquidation, dissolution or winding up, whether
voluntary or involuntary, each holder of our depository receipts will be
entitled to the fraction of the liquidation preference accorded each share of
preferred stock represented by the depository share evidenced by such
depository receipt, as set forth in the applicable prospectus supplement.
CONVERSION OF PREFERRED STOCK
The depository shares, as such, are not convertible into our common stock
or any of our securities or property. Nevertheless, if so specified in the
applicable prospectus supplement relating to an offering of depository shares,
the depository receipts may be surrendered by depository receipt holders to
the preferred stock depository with written instructions to the preferred
stock depository instructing us to cause conversion of our preferred stock
represented by the depository shares evidenced by such depository receipts
into whole shares of common stock, other preferred stock or other shares of
our capital stock, and we have agreed that upon receipt of such instructions
and any amounts payable in respect of such instructions, we will cause the
conversion of the preferred stock represented by depository shares utilizing
the same procedures as those provided for delivery of preferred stock to
effect such conversion. If the depository shares evidenced by a depository
receipt are to be converted in part only, one or more new depository receipts
will be issued for any depository shares not to be converted. No fractional
shares of our common stock will be issued upon conversion, and if such
conversion will result in a fractional share being issued, an amount will be
paid in cash by us equal to the value of the fractional interest based upon
the closing price of our common stock on the last business day prior to the
conversion.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of depository receipt evidencing the depository shares which
represent the preferred stock and any provision of the deposit agreement may
at any time be amended by agreement between us and the preferred stock
depository. However, any amendment that materially and adversely alters the
rights of the holders of depository receipts will not be effective unless such
amendment has been approved by the existing holders of at least a majority of
our depository shares evidenced by the depository receipts then outstanding.
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The deposit agreement may be terminated by us upon not less than 30 days'
prior written notice to the preferred stock depository if a majority of the
holders of each class of our depository shares affected by such termination
consents to such termination, whereupon the preferred stock depository shall
deliver or make available to each holder of depository receipts, upon
surrender of the depository receipts held by such holder, such number of whole
or fractional shares of our preferred stock as are represented by the
depository shares evidenced by such depository receipts. In addition, the
deposit agreement will automatically terminate if:
o all outstanding depository shares shall have been redeemed;
o there shall have been a final distribution in respect of the related
preferred stock in connection with any liquidation, dissolution or
winding up of us and such distribution shall have been distributed
to the holders of depository receipts evidencing the depository
shares representing such preferred stock; or
o each related share of preferred stock shall have been converted into
our capital stock not so represented by depository shares.
CHARGES OF PREFERRED STOCK DEPOSITORY
We will pay all transfer and other taxes and governmental charges arising
solely from the existence of the deposit agreement. In addition, we will pay
the fees and expenses of the preferred stock depository in connection with the
performance of its duties under the deposit agreement. However, holders of our
depository receipts will pay the fees and expenses of the preferred stock
depository for any duties requested by such holders to be performed which are
outside of those expressly provided for in the deposit agreement.
RESIGNATION AND REMOVAL OF PREFERRED STOCK DEPOSITORY
The preferred stock depository may resign at any time by delivering to us
notice of its election to do so, and we may at any time remove the preferred
stock depository. Any such resignation or removal shall take effect upon the
appointment of a preferred stock depository successor. A preferred stock
depository successor must be appointed within 60 days after delivery of the
notice of resignation or removal and must be a bank or trust company having
its principal office in the United States and having a combined capital and
surplus of at least $50,000,000.
MISCELLANEOUS
The preferred stock depository will forward to holders of our depository
receipts any reports and communications from us that are received by the
preferred stock depository with respect to the related preferred stock.
Neither we nor the preferred stock depository will be liable if we are
prevented from or delayed in, by law or any circumstances beyond our control,
performing our obligations under the deposit agreement. Our obligations and
the obligations of the preferred stock depository under the deposit agreement
will be limited to performing our respective duties under the deposit
agreement in good faith and without gross negligence or willful misconduct,
and neither we nor the preferred stock depository will be obligated to
prosecute or defend any legal proceeding in respect of any depository
receipts, depository shares or preferred stock represented by the depository
shares unless satisfactory indemnity is furnished. We and the preferred stock
depository may rely on written advice of counsel or accountants, or
information provided by persons presenting preferred stock represented by the
depository shares for deposit, holders
21
of depository receipts or other persons believed to be competent to give such
information, and on documents believed to be genuine and signed by a proper
party.
If the preferred stock depository shall receive conflicting claims,
requests or instructions from any holders of depository receipts, on the one
hand, and us, on the other hand, the preferred stock depository shall be
entitled to act on such claims, requests or instructions received from us.
DESCRIPTION OF WARRANTS
DESCRIPTION OF THE WARRANTS TO PURCHASE DEBT SECURITIES
The following statements with respect to the debt warrants are summaries
of, and subject to, the detailed provisions of a debt warrant agreement to be
entered into by us and a debt warrant agent to be selected by us at the time
of issue, which debt warrant agreement may include or incorporate by reference
standard debt securities warrant provisions substantially in the form of the
standard debt securities warrant provisions incorporated into this
registration statement by reference.
GENERAL
The debt warrants, evidenced by debt warrant certificates, may be issued
under the debt warrant agreement independently or together with any securities
offered by any prospectus supplement and may be attached to or separate from
such securities. If debt warrants are offered, the related prospectus
supplement will describe the designation and terms of the debt warrants,
including without limitation the following:
o the offering price, if any;
o the designation, aggregate principal amount and terms of the debt
securities purchasable upon exercise of the debt warrants;
o if applicable, the date on and after which the debt warrants and the
related securities will be separately transferable;
o the principal amount of debt securities purchasable upon exercise of
one debt warrant and the price at which such principal amount of
debt securities may be purchased upon exercise;
o the date on which the right to exercise the debt warrants shall
commence and the date on which such right shall expire;
o a discussion of certain United States federal income tax
considerations;
o whether the warrants represented by the debt warrant certificates
will be issued in registered or bearer form;
o the currency, currencies or currency units in which the offering
price, if any, and exercise price are payable;
o the antidilution provisions of the debt warrants; and
o any other terms of the debt warrants.
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Warrantholders do not have any of the rights of holders of debt
securities, including the right to receive the payment of principal of, or
interest on, the debt securities or to enforce any of the covenants of the
debt securities or the Indenture except as otherwise provided in the
Indenture.
EXERCISE OF DEBT WARRANTS
Our debt warrants may be exercised by surrendering to our debt warrant
agent the debt warrant certificate with the form of election to purchase on
the reverse side of the debt warrant certificate properly completed and signed
by the warrantholder or its duly authorized agent (such signature(s) to be
guaranteed by a bank or trust company, a broker or dealer which is a member of
the National Association of Securities Dealers, Inc. or by a national
securities exchange), indicating the warrantholder's election to exercise all
or a portion of the debt warrants evidenced by the certificate. Surrendered
debt warrant certificates shall be accompanied by payment in full of the
exercise price, as set forth in the applicable prospectus supplement. Upon the
exercise of debt warrants, we will issue the debt securities in authorized
denominations in accordance with the instructions of the exercising
warrantholder. If less than all of the debt warrants evidenced by the debt
warrant certificate are exercised, a new debt warrant certificate will be
issued for the remaining number of debt warrants.
DESCRIPTION OF THE WARRANTS TO PURCHASE
COMMON STOCK OR PREFERRED STOCK
The following statements with respect to the common stock warrants and
preferred stock warrants (collectively, the stock warrants) are summaries
of, and subject to, the detailed provisions of a stock warrant agreement to
be entered into by us and a stock warrant agent to be selected at the time
of issue, which stock warrant agreement may include or incorporate by
reference standard stock warrant provisions substantially in the form of
the standard stock warrant provisions incorporated into this registration
statement by reference.
GENERAL
Our stock warrants, evidenced by stock warrant certificates, may be
issued under the stock warrant agreement independently or together with any
securities offered by any prospectus supplement and may be attached to or
separate from such securities. If stock warrants are offered, the related
prospectus supplement will describe the designation and terms of the stock
warrants, including without limitation the following:
o the offering price, if any;
o the designation and terms of our common stock or preferred stock
purchasable upon exercise of the stock warrants;
o if applicable, the date on and after which our stock warrants and
the related securities will be separately transferable;
o the number of shares of our common stock or preferred stock
purchasable upon exercise of one stock warrant and the initial price
at which such shares may be purchased upon exercise;
o the date on which the right to exercise the stock warrants shall
commence and the date on which such right shall expire;
o a discussion of certain United States federal income tax
considerations;
23
o the call provisions, if any;
o the currency, currencies or currency units in which the offering
price, if any, and exercise price are payable;
o the antidilution provisions of the stock warrants; and
o any other terms of the stock warrants.
The shares of common stock or preferred stock issuable upon exercise of
the stock warrants will, when issued in accordance with the stock warrant
agreement, be fully paid and nonassessable.
EXERCISE OF STOCK WARRANTS
Our stock warrants may be exercised by surrendering to our stock warrant
agent the stock warrant certificate with the form of election to purchase on
the reverse side of the stock warrant certificate properly completed and
signed by the warrantholder, or its duly authorized agent (such signature(s)
to be guaranteed by a bank or trust company, a broker or dealer which is a
member of the National Association of Securities Dealers, Inc. or by a
national securities exchange), indicating the warrantholder's election to
exercise all or a portion of the stock warrants evidenced by the certificate.
Surrendered stock warrant certificates shall be accompanied by payment of the
aggregate exercise price of the stock warrants to be exercised, as set forth
in the applicable prospectus supplement. Upon receipt of the stock warrant
certificate by the stock warrant agent, the stock warrant agent will
requisition from the transfer agent for the common stock or the preferred
stock, as the case may be, for issuance and delivery to or upon the written
order of the exercising warrantholder, a certificate representing the number
of shares of common stock or preferred stock purchased. If less than all of
the stock warrants evidenced by any stock warrant certificate are exercised,
the stock warrant agent shall deliver to the exercising warrantholder a new
stock warrant certificate representing the unexercised stock warrants.
ANTIDILUTION AND OTHER PROVISIONS
The exercise price payable and the number of shares of our common stock
or preferred stock purchasable upon the exercise of each of our stock warrants
and the number of our stock warrants outstanding will be subject to adjustment
in certain events, including the issuance of a stock dividend to our holders
of common stock or preferred stock, respectively, or a combination,
subdivision or reclassification of our common stock or preferred stock,
respectively. In lieu of adjusting the number of shares of our common stock or
preferred stock purchasable upon exercise of each of our stock warrants, we
may elect to adjust the number of our stock warrants. No adjustment in the
number of shares purchasable upon exercise of the stock warrants will be
required until cumulative adjustments require an adjustment of at least 1
percent. We may, at our option, reduce the exercise price at any time. No
fractional shares will be issued upon exercise of stock warrants, but we will
pay the cash value of any fractional shares otherwise issuable.
Notwithstanding the foregoing, in case of any consolidation, merger, sale or
conveyance of our property as an entirety or substantially as an entirety, the
holder of each of our outstanding stock warrants shall have the right to the
kind and amount of shares of stock and other securities and property,
including cash, receivable by a holder of the number of shares of our common
stock or preferred stock into which such stock warrants were exercisable
immediately prior to any such consolidation, merger, sale or conveyance of any
of our property.
NO RIGHTS AS STOCKHOLDERS
Holders of our stock warrants will not be entitled, by virtue of being
such holders, to vote, to consent, to receive dividends, to receive notice as
stockholders with respect to any meeting of
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stockholders for the election of our directors or any other matter, or to
exercise any rights whatsoever as our stockholders.
DESCRIPTION OF STOCK PURCHASE CONTRACTS
AND STOCK PURCHASE UNITS
We may issue stock purchase contracts, which are contracts obligating
holders to purchase from us, and us to sell to the holders, a specified number
of shares of common stock or preferred stock at a future date or dates. The
price per share of common stock or preferred stock and the number of shares of
common stock or preferred stock may be fixed at the time the stock purchase
contracts are issued or may be determined by reference to a specific formula
set forth in the stock purchase contracts. The stock purchase contracts may be
issued separately or as stock purchase units consisting of a stock purchase
contract and debt securities, preferred stock or debt obligations of third
parties, including U.S. treasury securities, securing the holders' obligations
to purchase the common stock or preferred stock under the stock purchase
contracts. The stock purchase contracts may require us to make periodic
payments to the holders of the stock purchase units or vice versa, and such
payments may be unsecured, secured or prefunded on some basis to be specified
in the applicable prospectus supplement.
The applicable prospectus supplement will describe the terms of the stock
purchase contracts or stock purchase units and, if applicable, collateral or
depository arrangements, relating to the stock purchase contracts or stock
purchase units.
Material United States federal income tax considerations applicable to
the stock purchase units and the stock purchase contracts will be discussed in
the applicable prospectus supplement.
PLAN OF DISTRIBUTION
We may sell the securities being offered under this prospectus (1)
directly to purchasers, (2) through agents, (3) through underwriters or a
group of underwriters or (4) through a combination of those methods of sale.
The applicable prospectus supplement with respect to the securities will
describe the terms of the offering of these securities and the method of
distribution of these securities.
Offers to purchase securities may be solicited directly by us or by
agents designated by us from time to time. Unless otherwise indicated in the
prospectus supplement, any agent will be acting on a best efforts basis for
the period of its appointment (ordinarily five business days or less). Agents
may be entitled under agreements, which may be entered into with us to
indemnification by us against certain civil liabilities, including liabilities
under the Securities Act.
If an underwriter or underwriters are utilized in the sale, we will enter
into an underwriting agreement with such underwriters at the time of sale to
them and the names of the underwriters and the terms of the transaction will
be set forth in the applicable prospectus supplement, which will be used by
the underwriters to make resales of the securities in respect of which this
prospectus is delivered to the public. The underwriters may be entitled, under
the underwriting agreement, to indemnification by us against certain
liabilities, including liabilities under the Securities Act.
Any securities offered other than common stock will be a new issue of
securities with no established trading market. Any underwriters to whom such
securities are sold by us for public offering and sale may make a market in
such securities, but such underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. No assurance can be
given as to the liquidity of or the trading markets for any such securities.
25
The agents and underwriters may be deemed to be underwriters and any
discounts, commissions or concessions received by them from us or any profit
on the resale of securities by them may be deemed to be underwriting discounts
and commissions under the Securities Act. Any such person who may be deemed to
be an underwriter and any such compensation received from us will be described
in the applicable prospectus supplement. Agents and underwriters may be
customers of, engage in transactions with, or perform services for, us in the
ordinary course of business.
The place and time of delivery for the securities that are described
generally in this prospectus will be set forth in the applicable prospectus
supplement.
LEGAL OPINIONS
Certain legal matters in connection with the securities will be passed
upon for us by Cravath, Swaine & Moore, Worldwide Plaza, 825 Eighth Avenue,
New York, NY 10019. The legality of the securities will be passed upon for any
underwriters as set forth in the prospectus supplement.
EXPERTS
The audited financial statements and schedules incorporated by reference
into this registration statement have been audited by Arthur Andersen LLP,
independent public accountants, as indicated in their reports with respect to
the audited financial statements and schedules, and are included in this
registration statement in reliance upon the authority of Arthur Andersen LLP
as experts in giving said reports.
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[Brunswick Logo]
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the estimated expenses, other than
underwriting discounts and commissions, to be paid by the company in
connection with the issuance and distribution of the securities registered
hereby:
SEC registration fee $112,500
Printing and engraving costs 30,000
Legal fees and expenses 150,000
Accounting fees and expenses 125,000
Trustee fees and expenses 5,000
Rating agency fees 380,000
Miscellaneous 22,500
------------
Total $825,000
============
Item 15. Indemnification of Officers and Directors.
(A) Section 145 of the Delaware General Corporation Law, under which we
are organized, generally empowers a corporation, subject to certain
limitations, to indemnify its officers, directors, employees and
agents, or others acting in similar capacities for other entities at
the request of the corporation, against certain expenses (including
attorneys' fees), judgments, fines and other amounts that may be
paid or incurred by them in their capacities as directors, officers,
employees or agents of the corporation.
(B) The Certificate of Incorporation of the Registrant authorizes its
Board of Directors to indemnify directors, officers, employees or
agents of the Registrant to the fullest extent permitted by law.
(C) The Registrant's By-laws authorize its Board of Directors to
indemnify directors, officers, employees and agents of the
Registrant in the same circumstances set forth in the Certificate of
Incorporation. The Registrant's By-laws also authorize it to
purchase liability insurance on behalf of its directors, officers,
employees and agents and to enter into indemnity agreements with its
directors, officers, employees and agents.
(D) The Registrant has entered into indemnification agreements with its
directors and its officers which provide broader indemnification
than the indemnification specifically available under Section 145 of
the Delaware General Corporation Law. The agreements provide that
the Registrant will indemnify its directors and its officers to the
fullest extent permitted by its Certificate of Incorporation (and
that is otherwise lawful) against expenses (including attorneys'
fees), judgments, fines, taxes, penalties and settlement payments
incurred by reason of the fact that they were directors or officers
of the Registrant. Unlike Section 145 of the Delaware General
Corporation Law, this indemnification would, to the extent that it
is lawful, cover judgments, fines and amounts paid in settlement of
claims against the director or officer by or in the right of the
Registrant.
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(E) The Registrant is the owner of an insurance policy which covers it
for losses incurred pursuant to indemnification obligations set
forth above during any policy year, subject to specified exclusions,
terms and conditions. The policy also covers the officers and
directors of the Registrant for certain of such losses if they are
not indemnified by the Registrant.
(F) The Registrant is also the owner of an insurance policy which would
reimburse it for certain losses incurred by it pursuant to its
fiduciary obligations under the Employee Retirement Income Security
Act of 1974, subject to specified exclusions, terms and conditions.
This policy also covers the officers, directors and employees of the
Registrant for certain of their losses incurred as fiduciaries under
the Act, subject to specified exclusions, terms and conditions.
(G) Under the terms of the Equity Underwriting Agreement and the Debt
Underwriting Agreement filed as exhibits to this registration
statement, directors, certain officers and controlling persons of
the Registrant are entitled to indemnification under certain
circumstances including proceedings under the Securities Act of 1933
and the Securities Exchange Act of 1934.
Item 16. Exhibits.
1.1 Form of Equity Underwriting Agreement*
1.2 Form of Debt Underwriting Agreement*
3.1 Restated Certificate of Incorporation of Brunswick Corporation
(incorporated by reference to Exhibit 19.2 to Brunswick's
Quarterly Report on Form 10-Q for the quarterly period ended
June 30, 1987)
3.2 Certificate of Designation, Preferences and Rights of Series A
Junior Participating Preferred Stock of Brunswick Corporation
(incorporated by reference to Exhibit 3.2 to Brunswick's Annual
Report on Form 10-K for the year ended December 31, 1995)
3.3 Brunswick Corporation By-laws (incorporated by reference to
Exhibit 3 to Brunswick's Quarterly Report on Form 10-Q for the
quarterly period ended March 31, 2000)
4.1 Indenture dated as of March 15, 1987, between Brunswick
Corporation and Continental Illinois National Bank and Trust
Registrant of Chicago (incorporated by reference to Exhibit 4.1
to Brunswick's Quarterly Report on Form 10-Q for the quarterly
period ended March 31, 1987)
4.2 Rights Agreement dated as of February 5, 1996, between
Brunswick Corporation and Harris Trust and Savings Bank
(incorporated by reference to Exhibit 1 to Brunswick's
Registration Statement for Preferred Share Purchase Rights on
Form 8-A, dated March 13, 1996)
4.3 Form of Standard Stock Warrant Provisions*
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4.4 Form of Standard Debt Warrant Provisions*
4.5 Form of Corporate Unit Certificate**
4.6 Form of Remarketing Agreement**
4.7 Form of Pledge Agreement**
4.8 Form of Stock Purchase Contract**
4.9 Instrument of Resignation, Appointment and Acceptance signed
May 25, 2000, by and among Brunswick, Harris Trust and Savings
Bank and The Bank of New York
5.1 Opinion of Cravath, Swaine & Moore
12.1 Statement regarding computation of ratio of earnings to fixed
charges
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Cravath, Swaine & Moore (included in its opinion
filed as Exhibit 5.1)
24.2 Powers of Attorney (included on the signature page of this
Registration Statement)
25.1 Statement of Eligibility of Trustee on Form T-1 for Harris
Trust and Savings Bank
* Incorporated by reference to Brunswick's Registration Statement
on Form S-3 (Registration No. 333-9997), declared effective by
the Securities and Exchange Commission on December 2, 1996
** To be filed by Amendment
Item 17. Undertakings.
(A) The Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of
II-3
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end
of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20 percent
change in the maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective registration statement; and
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (1) (i) and (ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement;
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof; and
(3) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(B) The undersigned Registrant hereby undertakes to deliver or cause
to be delivered with this prospectus, to each person to whom the prospectus is
sent or given, the last annual report to security holders that is incorporated
by reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim information.
(C) The Registrant hereby undertakes that:
(1) for purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective; and
(2) for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(D) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to section 13(a) or section 15(d) of
the Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
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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 the
requirements for filing on Form S-3 and has duly caused this amended
registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Lake Forest, Illinois on October 10,
2001.
BRUNSWICK CORPORATION
By: /s/ Peter G. Leemputte
-----------------------
Name: Peter G. Leemputte
Title: Vice President and
Controller
Each of the undersigned directors and officers of the Registrant hereby
severally constitutes and appoints Victoria J. Reich and Peter G. Leemputte,
and each of them, as attorneys-in-fact for the undersigned, in any and all
capacities, with full power of substitution, to sign any amendments to this
registration statement (including post-effective amendments) and any
subsequent registration statement filed by Brunswick Corporation pursuant to
Rule 462(b) of the Securities Act of 1933, and to file the same with exhibits
thereto and other documents in connection therewith with the Securities and
Exchange Commission, granting unto said attorneys-in-fact, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that each said attorney-in-fact, or either of them, may
lawfully do or cause to be done by virtue hereof.
Signature Title Date
/s/ George W. Buckley Chairman and Chief Executive October 10, 2001
-------------------------- Officer (Principal Executive
(George W. Buckley) Officer), and Director
/s/ Victoria J. Reich Senior Vice President and October 10, 2001
-------------------------- Chief Financial Officer
(Victoria J. Reich) (Principal Financial Officer)
/s/ Peter G. Leemputte Vice President and Controller October 10, 2001
-------------------------- (Principal Accounting Officer)
(Peter G. Leemputte)
/s/ Nolan D. Archibald Director October 10, 2001
--------------------------
(Nolan D. Archibald)
/s/ Dorritt J. Bern Director October 10, 2001
--------------------------
(Dorritt J. Bern)
/s/ Jeffrey L. Bleustein Director October 10, 2001
--------------------------
(Jeffrey L. Bleustein)
/s/ Michael J. Callahan Director October 10, 2001
--------------------------
(Michael J. Callahan)
II-5
/s/ Manuel A. Fernandez Director October 10, 2001
--------------------------
(Manuel A. Fernandez)
/s/ Peter B. Hamilton Director October 10, 2001
--------------------------
(Peter B. Hamilton)
/s/ Peter Harf Director October 10, 2001
--------------------------
(Peter Harf)
/s/ Jay W. Lorsch Director October 10, 2001
--------------------------
(Jay W. Lorsch)
/s/ Bettye Martin Musham Director October 10, 2001
--------------------------
(Bettye Martin Musham)
/s/ Robert L. Ryan Director October 10, 2001
--------------------------
(Robert L. Ryan)
/s/ Roger W. Schipke Director October 10, 2001
--------------------------
(Roger W. Schipke)
II-6
EXHIBIT NO. EXHIBIT
1.1 Form of Equity Underwriting Agreement*
1.2 Form of Debt Underwriting Agreement*
3.1 Restated Certificate of Incorporation of Brunswick Corporation
(incorporated by reference to Exhibit 19.2 to Brunswick's
Quarterly Report on Form 10-Q for the quarterly period ended
June 30, 1987)
3.2 Certificate of Designation, Preferences and Rights of Series A
Junior Participating Preferred Stock of Brunswick Corporation
(incorporated by reference to Exhibit 3.2 to Brunswick's Annual
Report on Form 10-K for the year ended December 31, 1995)
3.3 Brunswick Corporation By-laws (incorporated by reference to
Exhibit 3 to Brunswick's Quarterly Report on Form 10-Q for the
quarterly period ended March 31, 2000)
4.1 Indenture dated as of March 15, 1987, between Brunswick
Corporation and The Bank of New York as successor to Harris
Trust and Savings and Continental Illinois National Bank and
Trust Company of Chicago (incorporated by reference to Exhibit
4.1 to Brunswick's Quarterly Report on Form 10-Q for the
quarterly period ended March 31, 1987)
4.2 Rights Agreement dated as of February 5, 1996, between
Brunswick Corporation and Harris Trust and Savings Bank
(incorporated by reference to Exhibit 1 to Brunswick's
registration statement for Preferred Share Purchase Rights on
Form 8-A, dated March 13, 1996)
4.3 Form of Standard Stock Warrant Provisions*
4.4 Form of Standard Debt Warrant Provisions*
4.5 Form of Corporate Unit Certificate**
4.6 Form of Remarketing Agreement**
4.7 Form of Pledge Agreement**
4.8 Form of Stock Purchase Contract**
4.9 Instrument of Resignation, Appointment and Acceptance signed as
of May 25, 2000, by and among Brunswick, Harris Trust and
Savings Bank and The Bank of New York
5.1 Opinion of Cravath, Swaine & Moore
12.1 Statement regarding computation of ratio of earnings to fixed
charges
23.1 Consent of Arthur Andersen LLP
II-7
23.2 Consent of Cravath, Swaine & Moore (included in its opinion
filed as Exhibit 5.1)
24.2 Powers of Attorney (included on the signature page of this
registration statement)
25.1 Statement of Eligibility of Trustee on Form T-1 for Bank of New
York
* Incorporated by reference to Brunswick's registration statement
on Form S-3 (Registration No. 333-9997), declared effective by
the Securities and Exchange Commission on December 2, 1996
** To be filed by Amendment
II-8