AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 21, 2002
REGISTRATION NO. 333-88384
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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PRE-EFFECTIVE AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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CUMMINS INC.
CUMMINS CAPITAL TRUST II
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
INDIANA 35-0257090
DELAWARE TO BE APPLIED FOR
(STATE OF OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION)
500 Jackson Street
Box 3005
Columbus, Indiana 47202-3005
(812) 377-5000
(Address, including zip code, and telephone number,
including area code, of registrant's principal
executive offices)
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Marya M. Rose, Esq.
Vice President-General Counsel
and Secretary
Cummins Inc.
500 Jackson Street
Box 3005
Columbus, Indiana 47202-3005
(812) 377-3520
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copy to:
William J. Whelan, III, Esq.
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019-7475
(212) 474-1000
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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 the Registrant.
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, as amended (the "Securities Act"), 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. [ ]
CALCULATION OF REGISTRATION FEE
Proposed maximum Proposed maximum
Title of each class of Amount to be offering price per aggregate offering Amount of
securities to be registered registered (1) unit (1)(2) price (1)(2) registration fee
Common Stock, $2.50 par value
per share (3)(4)
Preferred Stock (4)
Preference Stock (4)
Depositary Shares (5)
Warrants (4)
Stock Purchase Contracts (4)
Stock Purchase Units (4)(6)
Debt Securities (4)(7)
Trust Preferred Securities of
Cummins Capital Trust II
Guarantees of Trust Preferred
Securities of Cummins Capital
Trust II (8)
Total $750,000,000 N/A $750,000,000 $0 (9)
(1) Not specified with respect to each class of securities being registered
under this registration statement pursuant to General Instruction II.D.
of Form S-3 under the Securities Act of 1933 (the "Securities Act").
(2) Estimated solely for the purpose of calculating the registration fee,
pursuant to Rule 457(o) under the Securities Act. Any offering of debt
securities denominated in any foreign or composite currency will be
treated as the equivalent in U.S. dollars based on the exchange rate
applicable to the purchase of such debt securities from Cummins Inc. Any
securities registered under this registration statement may be sold
separately or as units with other securities registered under this
registration statement and may include hybrid securities including a
combination of features of certain securities listed above.
(3) Includes associated preferred stock purchase rights. Prior to the
occurrence of certain events, such rights will not be exercisable or
evidenced separately from the common stock.
(4) Includes such indeterminate number of shares of common stock, preferred
stock and preference stock, an indeterminate number of warrants, stock
purchase contracts and stock purchase units, and an indeterminate
principal amount of debt securities, as may from time to time be issued
upon conversion into, exchange for or upon exercise of, securities
registered hereunder, to the extent any of such securities are, by their
terms, convertible into or exchangeable or exercisable for common stock,
preferred stock, preference stock, warrants, stock purchase contracts,
stock purchase units or debt securities.
(5) To be evidenced by depositary receipts issued pursuant to a deposit
agreement. In the event Cummins Inc. elects to offer fractional interests
in shares of preferred stock or preference stock registered hereunder,
depositary receipts may be distributed to those persons acquiring such
fractional interests and the shares of preferred stock or preference
stock will be issued to the depositary under the depositary agreement.
(6) Each stock purchase unit consists of (a) a stock purchase contract, under
which the holder, upon settlement, will purchase an indeterminate number
of common shares and (b) either a beneficial interest in preferred
securities of Cummins Capital Trust II, debt obligations of Cummins Inc.
or debt obligations of third parties, including U.S. Treasury securities,
that, in each case, secure the obligations of such holder to purchase
such shares of common stock. No separate consideration will be received
for the stock purchase contracts.
(7) If any debt securities are issued at an original issue discount, then the
offering price shall be in such greater principal amount as shall result
in an aggregate initial offering price not to exceed $750,000,000, less
the dollar amount of any securities previously issued hereunder. Debt
securities may be issued and sold to Cummins
Capital Trust II, in which event such debt securities may later be
distributed to the holders of preferred securities upon a dissolution of
Cummins Capital Trust II and a dissolution of its assets.
(8) The value attributable to the guarantees, if any, is reflected in the
value of the trust preferred securities and no separate consideration
will be received for any guarantees. The guarantees include the rights of
holders of the trust preferred securities under the guarantees and
certain backup undertakings, comprised of obligations of Cummins Inc.
under the indenture and under the declaration of trust of Cummins Capital
Trust II, as described in the prospectus filed with this registration
statement.
(9) Calculated pursuant to Rule 457(o) at the statutory rate of $92 per
$1,000,000 of securities registered and, pursuant to Rule 457(p), is
offset by the fee of $69,000 previously paid in connection with
securities of Cummins Inc. unsold under Registration Statement No.
333-42687, initially filed on December 19, 1997, which unsold securities
are hereby deregistered.
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THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
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.
THIS REGISTRATION STATEMENT DOES NOT CONSTITUTE AN AGREEMENT,
UNDERSTANDING OR ARRANGEMENT TO ISSUE SECURITIES HEREUNDER.
PROSPECTUS
$750,000,000
Cummins Inc.
Common Stock, Preferred Stock, Preference Stock, Depositary Shares,
Warrants, Stock Purchase Contracts, Stock Purchase Units,
Debt Securities and Guarantees
Cummins Capital Trust II
Trust Preferred Securities, guaranteed as set forth herein by
Cummins Inc.
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We may use this prospectus to offer and sell, from time to time, securities
comprising one or more of:
o shares of our common stock, $2.50 par value per share;
o shares of our preferred stock in one or more series, including
depositary shares representing fractional interests in shares of
preferred stock;
o shares of our preference stock in one or more series, including
depositary shares representing fractional interests in shares of
preference stock;
o warrants to purchase our debt securities or shares of our common
stock, preferred stock or preference stock;
o stock purchase contracts;
o stock purchase units;
o debt securities, in one or more series, in each case consisting of
notes, debentures or other unsecured evidences of indebtedness;
o trust preferred securities issued by Cummins Capital Trust II,
including our guarantees with respect to such securities; or
o units consisting of any combination of these securities,
in one or more offerings at an aggregate initial offering price no greater
than $750,000,000 or its equivalent in foreign or composite currencies.
Our common stock is listed on the New York Stock Exchange and the Pacific
Stock Exchange under the symbol "CUM". Any common stock offered will be
listed, subject to notice of issuance, on such exchanges.
We may sell securities to or through underwriters, and also may sell
securities directly to other purchasers or through agents. The applicable
prospectus supplement for any sale of securities will set forth the names of
any underwriters or agents involved in such sale of securities, the principal
amounts, if any, to be purchased by underwriters and the compensation, if any,
of such underwriters or agents. See "Plan of Distribution".
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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.
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The date of this prospectus is May 21, 2002
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TABLE OF CONTENTS
Page
Where You Can Find More Information...........................................3
Incorporation of Certain Documents by Reference...............................3
Cummins Inc...................................................................4
Cummins Capital Trust II......................................................4
Risk Factors..................................................................5
Disclosure Regarding Forward-Looking Statements...............................5
Use of Proceeds...............................................................5
Ratios of Earnings to Fixed Charges and of Earnings to Combined
Fixed Charges and Preferred Stock Dividend Requirements..................6
Description of Common Stock...................................................6
Description of Preferred Stock and Preference Stock...........................8
Description of Depositary Shares.............................................11
Description of Warrants......................................................14
Description of Debt Securities...............................................15
Description of Stock Purchase Contracts and Stock Purchase Units.............21
Description of Trust Preferred Securities....................................22
Description of Trust Preferred Securities Guarantees.........................24
Plan of Distribution.........................................................27
Validity of Securities.......................................................27
Experts......................................................................28
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This prospectus is part of a registration statement that we filed with
the Securities and Exchange Commission, which we refer to as the SEC,
utilizing a "shelf" registration process, which allows us to offer and sell
any combination of these securities in one or more offerings. Using this
prospectus, we may offer up to a total dollar amount of $750,000,000 of these
securities.
This prospectus provides you with a general description of the securities
we may offer. Each time we sell securities, we will provide a prospectus
supplement that will describe the specific terms of the securities we are then
offering. Each prospectus supplement will also contain specific information
about the terms of the offering it describes. Prospectus supplements may also
add to, update or change the information contained in this prospectus. In
addition, as we describe in the section entitled "Where You Can Find More
Information," we have filed and plan to continue to file other documents with
the SEC that contain information about us and the business conducted by us and
our subsidiaries. Before you decide whether to invest in any of these
securities, you should read this prospectus, the prospectus supplement that
further describes the offering of those securities and the information we file
with the SEC.
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You should rely only on the information contained or incorporated by
reference in this prospectus and any applicable prospectus supplement. We have
not authorized any other person to provide you with different information. We
will not make an offer to sell these securities in any jurisdiction where the
offer or sale is not permitted. You should assume that the information
appearing in this prospectus is accurate only as of the date on the cover
page.
In this prospectus, references to "the company," "we," "us," "our" and
"Cummins" are to Cummins Inc. and its subsidiaries, unless the context
otherwise requires. The phrase "this prospectus" refers to this prospectus and
any applicable prospectus supplement, unless the context otherwise requires.
References to "securities" refer collectively to the common stock, preferred
stock, preference stock, depositary shares, warrants, stock purchase
contracts, stock purchase units, debt securities, trust preferred securities
and trust preferred securities guarantees offered by this prospectus.
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WHERE YOU CAN FIND MORE INFORMATION
We are subject to the information reporting requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and,
accordingly, file annual, quarterly and special reports, proxy statements and
other information with the SEC. Members of the public may read and copy any
materials we file with the SEC at the Public Reference Room maintained by the
SEC at 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549.
Information on the operation of the Public Reference Room maintained by
the SEC may be obtained by calling the SEC at 1-800-SEC-0330. The SEC
maintains an Internet site at http://www.sec.gov that contains materials we
file electronically with the SEC.
Cummins Capital Trust II is a newly formed special purpose entity, has no
operating history or independent operations and is not engaged in and does not
propose to engage in any activity other than its holding as trust assets our
subordinated debt securities and the issuance of the trust preferred
securities. Further, 100% of the outstanding common securities of the trust is
or will be owned by us and the trust preferred securities guarantee that we
will issue in connection with any issuance of trust preferred securities by
the trust, together with our obligations under the subordinated debt
securities and related agreements and instruments, will constitute a full and
unconditional guarantee on a subordinated basis by us of payments due on the
trust preferred securities. Accordingly, pursuant to Rule 3-10(b) of
Regulation S-X under the Securities Act of 1933 (the "Securities Act"), and
the Exchange Act, no separate financial statements for the trust have been
included or incorporated by reference in the registration statements and,
pursuant to Rule 12h-5 under the Exchange Act, the trust will not be subject
to the information reporting requirements of the Exchange Act.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
This prospectus incorporates by reference important business and
financial information about us that is not otherwise included in this
prospectus. The following documents filed by us with the SEC are incorporated
herein by reference and shall be deemed to be a part of this prospectus:
1. Annual Report on Form 10-K for the fiscal year ended December 31,
2001;
2. Quarterly Report on Form 10-Q for the period ended March 31, 2002;
3. Current Report on Form 8-K filed on April 3, 2002;
4. Description of our common stock contained in our Registration
Statement on Form 8-A filed February 22, 1988; and
5. Description of the preferred stock purchase rights issued pursuant
to our shareholders' rights plan contained in our Registration
Statement on Form 8-A dated November 6, 1990, as amended on November
1, 1993, January 12, 1994 and July 15, 1996.
Current Reports on Form 8-K containing only Regulation FD disclosure
furnished under Item 9 of Form 8-K are not incorporated herein by reference.
All documents and reports filed by us with the SEC (other than Current
Reports on Form 8-K containing only Regulation FD disclosure furnished
pursuant to Item 9 of Form 8-K, unless otherwise indicated therein) pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of
this prospectus and prior to the termination of this offering shall be deemed
incorporated herein by reference and shall be deemed to be a part hereof from
the date of filing of such documents and reports. Any statement contained in a
document incorporated or deemed to be incorporated by reference in this
prospectus shall be deemed to be modified or superseded for purposes of this
document to the extent that a statement contained herein or in any
subsequently filed document or report that also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this document.
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We will provide, without charge to each person, including any beneficial
owner, to whom this prospectus is delivered, upon request of such person, a
copy of any or all of the documents incorporated herein by reference other
than exhibits, unless such exhibits specifically are incorporated by reference
into such documents or this document. Written requests for such documents
should be addressed to:
Karen A. Battin
Director - Investor Relations
Cummins Inc.
500 Jackson Street
Box 3005 (Mail Code 60118)
Columbus, Indiana 47202-3005
Telephone requests may be directed to (812) 377-3121.
CUMMINS INC.
We are a leading worldwide designer and manufacturer of diesel engines,
ranging from 55 to 3,500 horsepower, and the largest producer of commercial
diesel engines above 50 horsepower. We also produce natural gas engines and
engine components and subsystems. We provide power and components for a wide
variety of equipment in our key businesses: power generation, filtration and
engines.
We sell our products to original equipment manufacturers, or OEMs,
distributors and other customers worldwide. We have manufacturing facilities
worldwide, including major operations in Europe, India, Mexico, China and
Brazil. Parts distribution centers in Brazil, Mexico, Australia, Singapore,
China, India and Belgium are strategically located to supply service parts to
our extensive customer base. We support our customer base with a significant
global distribution system of more than 500 independent distributors and
nearly 5,000 dealers in 131 countries.
In 2001, approximately 54% of net sales was in the United States. Major
international markets include Asia/Australia (16% of net sales); Europe/CIS
(15% of net sales); Mexico/Latin America (8% of net sales), Canada (5% of net
sales) and Africa/Middle East (2% of net sales).
Our principal executive offices are located at 500 Jackson Street, Box
3005, Columbus, Indiana 47202-3005, and our telephone number is (812)
377-5000.
CUMMINS CAPITAL TRUST II
Cummins Capital Trust II is a Delaware business trust formed to raise
capital for us by issuing preferred securities under this prospectus and any
applicable prospectus supplement, and investing the proceeds in subordinated
debt securities issued by us.
We will, directly or indirectly, own all of the common securities of
Cummins Capital Trust II. The common securities will rank equally with, and
the trust will make payments on the common securities in proportion to, the
trust preferred securities, except that if an event of default occurs under
the declaration of the trust, our rights, as holder of the common securities,
to payments will be subordinated to your rights as holder of the trust
preferred securities. We will, directly or indirectly, acquire common
securities in an aggregate liquidation amount equal to three percent of the
total capital of our trust.
As holder of the common securities of the trust, we are entitled to
appoint, remove or replace any of, or increase or decrease the number of, the
trustees of our trust, provided that at the time any preferred securities are
issued the number of trustees shall be at least three. The trust's business
and affairs will be conducted by the trustees we appoint. The trustees' duties
and obligations are governed by the trust's declaration. Prior to the issuance
of any trust preferred securities, we will ensure that one trustee of the
trust is a financial institution that will not be an affiliate of ours and
that will act as property trustee and indenture trustee for purposes of the
Trust Indenture Act of 1939, as amended, which we refer to as the Trust
Indenture Act. In addition, unless the property trustee maintains a principal
place of business in the State of Delaware and meets the other requirements of
applicable law, one trustee of the trust will have its principal place of
business or reside in the State of Delaware.
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We will pay all of the trust's fees and expenses, including those
relating to any offering of trust preferred securities. In addition, we will
enter into a guarantee with respect to each series of trust preferred
securities under which we will irrevocably and unconditionally agree to make
certain payments to the holders of that series of trust preferred securities,
subject to applicable subordination provisions, except that the guarantee will
only apply when the trust has sufficient funds immediately available to make
those payments but has not made them.
The principal office of the trust is located at 500 Jackson Street, Box
3005, Columbus, Indiana 47202-3005, and its telephone number is (812)
377-5000.
RISK FACTORS
An investment in our securities involves a degree of risk. In addition to
the other information included and incorporated by reference in this
prospectus, you should carefully consider the risk factors and other
information included and incorporated by reference in the applicable
prospectus supplement when determining whether or not to purchase the
securities offered under this prospectus and the applicable prospectus
supplement.
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking statements that are based on
current expectations, estimates and projections about the industries in which
we operate and management's beliefs and assumptions. Words such as "expects,"
"anticipates", "intends", "plans", "believes", "seeks" and "estimates", and
variations of such words and similar expressions, are intended to identify
such forward-looking statements. These statements are not guarantees of future
performance and involve certain risks, uncertainties and assumptions, which we
refer to as "future factors," which are difficult to predict. Therefore,
actual outcomes and results may differ materially from what is expressed or
forecasted in such forward-looking statements. We undertake no obligation to
update publicly any forward-looking statements, whether as a result of new
information, future events or otherwise.
Future factors include increasing price and product competition by
foreign and domestic competitors, including new entrants; rapid technological
developments and changes; the ability to continue to introduce competitive new
products on a timely, cost-effective basis; the mix of products; the
achievement of lower costs and expenses; domestic and foreign governmental and
public policy changes, including environmental regulations; protection and
validity of patent and other intellectual property rights; reliance on large
customers; technological, implementation and cost/financial risks in
increasing use of large, multi-year contracts; the cyclical nature of our
business; the outcome of pending and future litigation and governmental
proceedings; and continued availability of financing, financial instruments
and financial resources in the amounts, at the times and on the terms required
to support our future business.
These are representative of the future factors that could affect the
outcome of the forward-looking statements. In addition, such statements could
be affected by general industry and market conditions and growth rates,
general domestic and international economic conditions, including interest
rate and currency exchange rate fluctuations, and other future factors.
USE OF PROCEEDS
Except as otherwise described in the applicable prospectus supplement,
the net proceeds from the sale of the offered securities will be used for
general corporate purposes, which may include refinancings of indebtedness,
working capital, capital expenditures, acquisitions and repurchases and
redemptions of securities.
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RATIOS OF EARNINGS TO FIXED CHARGES AND EARNINGS TO FIXED CHARGES AND
PREFERRED STOCK AND PREFERENCE STOCK DIVIDENDS
YEAR ENDED DECEMBER 31, THREE MONTHS
--------------------------------------------- ------------------
ENDED MARCH 31,
1997 1998 1999 2000 2001 2001 2002
------- -------- -------- -------- -------- --------- --------
Consolidated ratio of earnings to fixed
charges.............................. 5.3 1.0 2.9 1.0 (0.2) (0.0) (0.3)
Consolidated ratio of earnings to fixed
charges and preferred stock and
preference stock dividends........... 5.3 1.0 2.9 1.0 (0.2) (0.0) (0.3)
For purposes of calculating the ratios of earnings to fixed charges and
earnings to fixed charges and preferred stock and preference stock dividends,
"earnings" include income before income taxes, extraordinary items, the
cumulative effects of changes in accounting principles and earnings or losses
of equity investees and fixed charges. "Fixed charges" consist of interest on
all indebtedness, including interest incurred by consolidated companies, and
that portion of rental expense that management believes to be representative
of interest. "Preferred stock and preference stock dividends" consist of the
amount of pre-tax earnings that are required to pay the dividends on
outstanding preferred stock and preference stock.
DESCRIPTION OF COMMON STOCK
The following is a description of certain terms of our common stock. This
description does not purport to be complete and is subject to, and qualified
in its entirety by, reference to our Restated Articles of Incorporation.
GENERAL
We are authorized to issue up to 150 million shares of common stock, par
value $2.50 per share. As of May 14, 2002, there were approximately 41.4
million shares of common stock outstanding held by approximately 4,600
shareholders of record. Subject to the limitations described below and the
prior rights of our preferred stock and preference stock, our common stock is
entitled to dividends when and as declared by our board of directors out of
funds legally available therefor. Holders of our common stock are entitled to
one vote per share. There is no provision for cumulative voting or preemptive
rights. The holders of our preferred stock and the holders of our preference
stock are each entitled to elect two directors to our board of directors upon
default in the payment of six quarterly dividends on any series of such class
and have voting rights with respect to amendments of our Restated Articles of
Incorporation affecting certain of their rights and in the case of certain
mergers, consolidations and dispositions of substantially all of our assets.
See "Description of Preferred Stock and Preference Stock--Voting Rights". Upon
any liquidation, voluntary or involuntary, of our company, holders of common
stock are entitled ratably to all of our assets after payment of our
liabilities and satisfaction of the liquidation preferences of the preferred
stock and the preference stock. The outstanding shares of common stock are,
and any shares of common stock offered pursuant to a prospectus supplement
will be, upon issuance against full payment therefor, fully paid and
nonassessable.
Our common stock is listed on the New York Stock Exchange and the Pacific
Stock Exchange. The transfer agent and registrar for our common stock is Wells
Fargo Shareowner Services, St. Paul, Minnesota.
DIVIDENDS
No dividends or distributions may be declared or paid or made on, or
acquisitions made of, any common stock unless dividends on all outstanding
preferred stock and preference stock for all past quarterly dividend periods
have been declared and paid or a sum sufficient for payment set apart. A
number of the agreements under which we have borrowed money restrict our
payment of dividends (other than stock dividends) and distributions on and the
redemption, purchase and acquisition by us of our capital stock, including our
preferred stock and preference stock. These restrictions typically limit the
sum of all such payments, distributions, redemptions, purchases and
acquisitions from a given date to a specified amount of retained earnings at
such date plus consolidated net income and the net proceeds to us from the
sale of our capital stock and indebtedness converted into such stock after
such date. Several such agreements require us to maintain minimum net worth
and working capital at specified levels. In
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addition, at any time we are in default under our revolving credit facility or
certain other financing arrangements, we would be prohibited from paying
dividends. We are presently unaware of any facts or circumstances that would
give rise to any such default.
SHAREHOLDERS' RIGHTS PLAN
We have a shareholders' rights plan which was first adopted in 1986. The
rights plan provides that each share of our common stock has associated with
it a stock purchase right. The rights plan becomes operative when a person or
entity acquires 15% of our common stock or commences a tender offer to
purchase 20% or more of our common stock without the approval of our board of
directors. In the event a person or entity acquires 15% of our common stock,
each right, except for the acquiring person's rights, can be exercised to
purchase $400 worth of common stock for $200. In addition, for a period of 10
days after such acquisition, our board of directors can exchange such right
for a new right which permits the holders to purchase one share of common
stock for $1. If a person or entity commences a tender offer to purchase 20%
or more of our common stock, unless our board of directors redeems the rights
within 10 days of the event, each right can be exercised to purchase one share
for $200. If the person or entity becomes an acquiring person, then the
provisions noted above apply. The rights plan also allows holders of the
rights to purchase shares of the acquiring person's stock at a discount if we
are acquired or 50% of our assets or earnings power is transferred to an
acquiring person.
ANTITAKEOVER PROVISIONS OF INDIANA LAW
Indiana Code (S) 23-1-42, which is referred to as the "Control Share
Act", provides that any person or group of persons that acquires the power to
vote more than one-fifth of specified corporations' shares shall not have the
right to vote such shares unless granted voting rights by the holders of a
majority of the outstanding shares of the corporation and by the holders of a
majority of the outstanding shares, excluding "interested shares". Interested
shares are those shares held by the acquiring person, officers of the
corporation and employees of the corporation who are also directors of the
corporation. If the approval of voting power for the shares is obtained,
additional shareholder approvals are required when a shareholder acquires the
power to vote more than one-third and more than a majority of the voting power
of the corporation's shares. In the absence of such approval, the additional
shares acquired by the shareholder may not be voted.
If the shareholders grant voting rights to the shares after a shareholder
has acquired more than a majority of the voting power, all shareholders of the
corporation are entitled to exercise statutory dissenters' rights and to
demand the value of their shares in cash from the corporation. If voting
rights are not accorded to the shares, the corporation may have the right to
redeem them. The provisions of the Control Share Act do not apply to
acquisitions of voting power pursuant to a merger or share exchange agreement
to which the corporation is a party.
Our By-laws provide that we are not subject to the Control Share Act.
However, our By-laws may be amended by our board of directors without a
shareholder vote.
Indiana Code (S) 23-1-43, which is referred to as the "Business
Combination Act", prohibits a person who acquires beneficial ownership of 10%
or more of certain corporations' shares (referred to as an "Interested
Shareholder"), or any affiliate or associate of an Interested Shareholder,
from effecting a merger or other business combination with the corporation for
a period of five years from the date on which the person became an Interested
Shareholder, unless the transaction in which the person became an Interested
Shareholder was approved in advance by the corporation's board of directors.
Following the five-year period, a merger or other business combination may be
effected with an Interested Shareholder only if (1) the business combination
is approved by the corporation's shareholders, excluding the Interested
Shareholder and any of its affiliates or associates, or (2) the consideration
to be received by shareholders in the business combination is at least equal
to the highest price paid by the Interested Shareholder in acquiring its
interest in the corporation, with certain adjustments, and certain other
requirements are met. The Business Combination Act broadly defines the term
"business combination" to include mergers, sales or leases of assets,
transfers of shares of the corporation, proposals for liquidation and the
receipt by an Interested Shareholder of any financial assistance or tax
advantage from the corporation, except proportionately as a shareholder of the
corporation.
7
The overall effect of the above provisions may be to render more
difficult or to discourage a merger, tender offer, proxy contest, the
assumption of control of us by a holder of a large block of our stock or other
person, or the removal of incumbent management, even if such actions may be
beneficial to our shareholders generally.
DESCRIPTION OF PREFERRED STOCK AND PREFERENCE STOCK
The following is a description of certain general terms and provisions of
our preferred stock and the preference stock . We refer to our preferred stock
and preference stock collectively in this prospectus as our "priority stock".
This description does not purport to be complete and is subject to, and
qualified in its entirety by, the provisions of our Restated Articles of
Incorporation and the certificate of designations relating to each series of
priority stock, which will be filed as an exhibit to or incorporated by
reference in the registration statement of which this prospectus is a part at
or prior to the time of issuance of any such series of priority stock. Our
Restated Articles of Incorporation authorize the issuance of 1,000,000 shares
of preferred stock and 1,000,000 shares of preference stock, with no par or
stated value. No shares of priority stock are currently outstanding.
The priority stock may be issued from time to time in one or more series,
without stockholder approval. Subject to limitations prescribed by law and our
Restated Articles of Incorporation, our board of directors is authorized to
determine the voting power (if any), designation, preferences and relative,
participating, optional or other special rights, and qualifications,
limitations or restrictions thereof, for each series of priority stock that
may be issued, and to fix the number of shares of each such series. Thus, our
board of directors, without stockholder approval, could authorize the issuance
of priority stock with voting, conversion and other rights that could
adversely affect the voting power and other rights of holders of common stock
or other series of priority stock or that could have the effect of delaying,
deferring or preventing a change in control of our company. See "Description
of Common Stock". Certain provisions applicable to the priority stock are set
forth in "Description of Common Stock". For a description of certain
antitakeover provisions under Indiana law, see "Description of Common
Stock--Antitakeover Provisions of Indiana Law".
The prospectus supplement relating to the particular priority stock
offered by such prospectus supplement will describe the following terms of the
priority stock:
o the designation and stated value per share and the number of shares
offered;
o the amount of liquidation preference per share;
o the initial public offering price at which such priority stock will
be issued;
o the dividend rate (or method of calculation), the dates on which
dividends shall be payable and the dates from which dividends shall
commence to cumulate, if any;
o any redemption or sinking fund provisions;
o any conversion or exchange rights;
o whether we have elected to offer depositary shares as described
below under "Description of Depositary Shares"; and
o any additional voting, dividend, liquidation, redemption, sinking
fund and other rights, preferences, privileges, limitations and
restrictions.
The priority stock will have the dividend, liquidation, redemption and
voting rights set forth below unless otherwise provided in the applicable
prospectus supplement.
8
GENERAL
The priority stock will be, upon issuance against full payment therefor,
fully paid and nonassessable. The holders of priority stock will not have any
preemptive rights. The applicable prospectus supplement will contain a
description of certain United States Federal income tax consequences relating
to the purchase and ownership of the priority stock that is offered under such
prospectus supplement.
RANK
With respect to dividend rights and rights upon the liquidation,
dissolution or winding up of our company, each share of preferred stock will
rank on a parity with each other share of preferred stock, irrespective of
series, and will rank prior to our common stock and preference stock and any
other class or series of our capital stock hereafter authorized over which the
preferred stock has preference or priority in the payment of dividends or in
the distribution of assets on any liquidation, dissolution or winding up of
our company. With respect to dividend rights and rights upon the liquidation,
dissolution or winding up of our company, each share of preference stock will
rank on a parity with each other share of preference stock, irrespective of
series, and will rank prior to the common stock and any other class or series
of our capital stock hereafter authorized over which the preference stock has
preference or priority in the payment of dividends or in the distribution of
assets on any liquidation, dissolution or winding up of our company.
The priority stock will be junior to all of our outstanding debt. Each
series of priority stock will be subject to creation of preferred or
preference stock ranking senior to, on a parity with or junior to such
priority stock to the extent not expressly prohibited by our Restated Articles
of Incorporation.
DIVIDENDS
Holders of shares of priority stock will be entitled to receive, when, as
and if declared by our board of directors out of funds of our company legally
available for payment, cash dividends, payable at such dates and at such rates
per share per annum as set forth in the applicable prospectus supplement. Such
rate may be fixed or variable or both. Each declared dividend will be payable
to holders of record as they appear at the close of business on our stock
books (or, in the event fractional interests of priority stock are issued and
represented by depositary receipts, on the records of the depositary referred
to below under "Description of Depositary Shares") on such record dates, not
more than 60 calendar days preceding the payment dates thereof, as are
determined by our board of directors. Each of such dates is referred to as a
"record date".
Such dividends may be cumulative or noncumulative, as provided in the
applicable prospectus supplement. If dividends on a series of priority stock
are noncumulative and if our board of directors fails to declare a dividend in
respect of a dividend period with respect to such series, then holders of such
priority stock will have no right to receive a dividend in respect of such
dividend period, and we will have no obligation to pay the dividend for such
period, whether or not dividends are declared payable on any future dividend
payment date.
No full dividend will be declared or paid or set apart for payment on our
preferred stock of any series or our preference stock of any series for any
dividend period unless full cumulative dividends have been or
contemporaneously are declared and paid or declared and a sum sufficient for
the payment thereof set apart for such payment on all the outstanding shares
of preferred stock or preference stock, as applicable, for all dividend
periods terminating on or prior to the end of such dividend period. When
dividends are not paid in full in this manner on all shares of preferred stock
or preference stock, as the case may be, any dividend payments (including
accruals, if any) on our preferred stock or preference stock, as applicable,
will be paid to the holders of the shares of our preferred stock or preference
stock, as the case may be, ratably in proportion to the respective sums which
such holders would receive if all dividends thereon accrued to the date of
payment were declared and paid in full. Accruals of dividends will not bear
interest.
So long as any shares of preferred stock or preference stock are
outstanding, in no event will any dividends, whatsoever, whether in cash or
property, be paid or declared, nor will any distribution be made, on any class
of stock ranking subordinate to our preferred stock or preference stock, as
the case may be, nor will any shares of stock ranking subordinate to our
preferred stock or preference stock, as the case may be, be purchased,
redeemed or
9
otherwise acquired for consideration by us or any of our subsidiaries, unless
all dividends on our preferred stock or preference stock, as applicable, for
all past quarterly dividend periods will have been paid or declared and a sum
sufficient for the payment thereof set apart. The foregoing provisions will
not, however, apply to a dividend payable solely in shares of any stock
ranking subordinate to our preferred stock or preference stock, as the case
may be, or to the acquisition of shares of any stock ranking subordinate to
our preferred stock or preference stock, as the case may be, in exchange
solely for shares of any other stock ranking subordinate to our preferred
stock or preference stock, as applicable.
See "Description of the Common Stock--Dividends" for certain contractual
limitations on dividends.
LIQUIDATION
In the event of a liquidation, dissolution or winding up of our company,
the holders of priority stock will be entitled, subject to the rights of
creditors, but before any distribution or payment to the holders of common
stock or any other security ranking junior to such priority stock, to receive
an amount per share determined by our board of directors and set forth in the
applicable prospectus supplement plus accrued and unpaid dividends to the
distribution or payment date (whether or not earned or declared). However,
neither the merger, nor the sale, lease or conveyance of all or substantially
all of our assets will be deemed a liquidation, dissolution or winding up of
our company for purposes of this provision. In the event that the assets
available for distribution with respect to our preferred stock or preference
stock, as the case may be, are not sufficient to satisfy the full liquidation
rights of all our outstanding preferred stock or preference stock, as
applicable, then such assets will be distributed to the holders of such
preferred stock or preference stock, as the case may be, ratably in proportion
to the full amounts to which they would otherwise be respectively entitled.
After payment of the full amount of the liquidation preference, the holders of
priority stock will not be entitled to any further participation in any
distribution of assets by us.
VOTING RIGHTS
At any time dividends in an amount equal to six quarterly dividend
payments on our preferred stock of any series, whether or not consecutive, or
six quarterly dividend payments on our preference stock of any series, whether
or not consecutive, shall be unpaid in whole or in part, holders of our
preferred stock or preference stock, as the case may be, shall have the right
to a separate class vote to elect two members of our board of directors at the
next annual meeting of stockholders and thereafter until such arrearages in
dividends have been declared and paid or declared and a sum sufficient for the
payment thereof set apart in trust for the holders entitled thereto, at which
time the rights of the holders of our preferred stock or our preference stock,
as the case may be, to elect such directors will cease and the terms of such
two directors will terminate.
Without the affirmative vote of the holders of two-thirds of our
preferred stock or two-thirds of our preference stock, as the case may be,
then outstanding (voting separately as a class, without respect to series), we
may not adopt any proposed amendment to our Restated Articles of Incorporation
which:
o authorizes, or increases the number of authorized shares of, any
capital stock of our company (which, in the case of our preference
stock, includes any increase in the number of authorized shares of
preferred stock) or any security or obligation convertible into any
other capital stock of our company ranking prior to our preferred
stock or our preference stock, as the case may be, in the
distribution of assets on any liquidation, dissolution or winding up
of our company or in the payment of dividends (and if an affirmative
vote of the holders of each series of preferred stock or each series
of preference stock is required by law, the affirmative vote of the
holders of at least a majority of the shares of each such series at
the time outstanding will also be required to adopt any such
proposed amendment); or
o affects adversely the relative rights, preferences, qualifications,
limitations or restrictions of the outstanding preferred stock or
preference stock, as the case may be, or the holders thereof,
provided, that if any such amendment affects adversely the relative
rights, preferences, qualifications, limitations or restrictions of
less than all series of our preferred stock or less than all series
of our preference stock, as the case may be, at the time
outstanding, then only the affirmative vote of the holders of at
least two-thirds of the shares of each series so affected is
necessary.
10
However, any amendment to our Restated Articles of Incorporation to authorize,
or to increase the number of authorized shares of, any capital stock ranking
on a parity with our preferred stock or our preference stock, as the case may
be, in the distribution of assets on any liquidation, dissolution or winding
up of our company or in the payment of dividends will not be deemed to affect
adversely the relative rights, preferences, qualifications, limitations or
restrictions of our preferred stock or our preference stock, as the case may
be, or any series thereof.
Without the affirmative vote of the holders of at least a majority of the
shares of our preferred stock or a majority of the shares of our preference
stock, as the case may be, at the time outstanding (or, if an affirmative vote
of the holders of the shares of preferred stock or preference stock of each
series is required by law, without the affirmative vote of holders of at least
a majority of the shares of our preferred stock or our preference stock, as
the case may be, of each series at the time outstanding), our company may not
adopt any proposed amendment to our Restated Articles of Incorporation which
increases the number of authorized shares of, our preferred stock or
preference stock, as the case may be, or authorizes, or increases the number
of authorized shares of any capital stock or any security or obligation
convertible into any capital stock ranking on a parity with our preferred
stock or preference stock, as the case may be, in the distribution of assets
on any liquidation, dissolution or winding up of our company or in the payment
of dividends, or to authorize any sale, lease or conveyance of all or
substantially all of our assets, or to adopt any agreement of merger of our
company with or into any other corporation or any agreement of merger of any
other company with or into our company. However, no such vote of the holders
of our preferred stock or preference stock, as the case may be, will be
required to adopt any such agreement of merger if none of the relative rights,
preferences, qualifications, limitations or restrictions of the outstanding
preferred stock or preference stock, as applicable, or any series thereof
would be adversely affected thereby and if the corporation resulting therefrom
will have thereafter no authorized stock ranking prior to or on a parity with
our preferred stock or preference stock, as the case may be, in the
distribution of assets on any liquidation, dissolution or winding up of such
resulting corporation or in the payment of dividends, except the same number
of authorized shares of stock with the same relative rights, preferences,
qualifications, limitations and restrictions thereof as our stock authorized
immediately preceding such merger and if each holder of the shares of our
preferred stock or preference stock, as the case may be, immediately preceding
such merger receives the same number of shares, with the same relative rights,
preferences, qualifications, limitations and restrictions thereof, of stock of
such resulting corporation.
Except as described above or as required by law, our priority stock will
not be entitled to any voting rights unless provided for in the applicable
certificate of designations and set forth in the applicable prospectus
supplement. As more fully described under "Description of Depositary Shares"
below, if we elect to issue depositary shares representing fractions of shares
of a series of the priority stock, each such depositary share will, in effect,
be entitled to such fraction of a vote per depositary share.
NO OTHER RIGHTS
The shares of a series of priority stock will not have any preferences,
voting powers or relative, participating, optional or other special rights
except as set forth above or in the applicable prospectus supplement, our
Restated Articles of Incorporation and the applicable certificate of
designations or as otherwise required by law.
TRANSFER AGENT AND REGISTRAR
The transfer agent for priority stock offered will be described in the
applicable prospectus supplement.
DESCRIPTION OF DEPOSITARY SHARES
The following is a description of certain general terms and provisions of
the depositary shares. The particular terms of any series of depositary shares
will be described in the applicable prospectus supplement. If so indicated in
a prospectus supplement, the terms of any such series may differ from the
terms set forth below. The summary of terms of the deposit agreement and of
the depositary shares and depositary receipts contained in this prospectus
does not purport to be complete and is subject to, and qualified in its
entirety by, reference to the forms of the deposit agreement and depositary
receipts which will be filed with the SEC at or prior to the time of any
offering of depositary shares.
GENERAL
We may, at our option, elect to offer fractional interests in shares of
preferred stock and preference stock, rather than shares of preferred stock or
preference stock. In the event such option is exercised, we will provide for
the issuance by a depositary to the public of receipts for depositary shares,
which we refer to as "depositary receipts", each of which will represent a
fractional interest.
The shares of any series of our preferred stock or preference stock
underlying the depositary shares will be deposited under a separate deposit
agreement between us and a bank or trust company, referred to as the
"depositary", selected by us having its principal office in the United States
and having a combined capital and surplus of at least $50,000,000. The
prospectus supplement relating to a series of depositary shares will set forth
the name and address of the depositary. Subject to the terms of the deposit
agreement, each owner of a depositary share will be entitled, in proportion to
the applicable fractional interest in a share of our preferred stock or
preference stock underlying such depositary shares, to all the rights and
preferences of the preferred stock or preference stock underlying such
depositary share (including dividend, voting, redemption, conversion and
liquidation rights).
The depositary shares will be evidenced by depositary receipts issued
pursuant to the deposit agreement.
Pending the preparation of definitive engraved depositary receipts, the
depositary may, upon our written order, issue temporary depositary receipts
substantially identical to (and entitling the holders thereof to all the
rights pertaining to) the definitive depositary receipts but not in definitive
form. Definitive depositary receipts will be prepared thereafter without
unreasonable delay, and temporary depositary receipts will be exchangeable for
definitive depositary receipts at our expense.
Upon surrender of depositary receipts at the office of the depositary and
upon payment of the charges provided in the deposit agreement and subject to
the terms thereof, a holder of depositary shares is entitled to have the
depositary deliver to such holder the whole shares of preferred stock or
preference stock underlying the depositary shares evidenced by the surrendered
depositary receipts.
DIVIDENDS AND OTHER DISTRIBUTIONS
The depositary will distribute all cash dividends or other cash
distributions received in respect of the applicable preferred stock or
preference stock to the record holders of depositary shares relating to such
preferred stock or preference stock in proportion to the numbers of such
depositary shares owned by such holders on the relevant record date. The
depositary shall distribute only such amount, however, as can be distributed
without attributing to any holder of depositary shares a fraction of one cent,
and any balance not so distributed shall be added to and treated as part of
the next sum received by the depositary for distribution to record holders of
depositary shares.
In the event of a distribution other than in cash, the depositary will
distribute property received by it to the record holders of depositary shares
entitled thereto, unless the depositary determines that it is not feasible to
make such distribution, in which case the depositary may, with our approval,
sell such property and distribute the net proceeds from such sale to such
holders.
The deposit agreement will also contain provisions relating to the manner
in which any subscription or similar rights offered by us to holders of our
preferred stock or preference stock shall be made available to holders of
depositary shares.
REDEMPTION OF DEPOSITARY SHARES
If a series of our preferred stock or preference stock underlying the
depositary shares is subject to redemption, the depositary shares will be
redeemed from the proceeds received by the depositary resulting from the
redemption, in whole or in part, of such series of our preferred stock or
preference stock held by the depositary. The depositary shall mail notice of
redemption not less than 30 and not more than 60 days prior to the date fixed
for redemption to the record holders of the depositary shares to be so
redeemed at their respective addresses appearing in the depositary's books.
The redemption price per depositary share will be equal to the applicable
fraction of the redemption price per share payable with respect to such series
of our preferred stock or preference stock.
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Whenever we redeem shares of preferred stock or preference stock held by the
depositary, the depositary will redeem as of the same redemption date the
number of depositary shares relating to shares of preferred stock or
preference stock so redeemed. If less than all of the depositary shares are to
be redeemed, the depositary shares to be redeemed will be selected by lot or
pro rata as may be determined by the depositary.
After the date fixed for redemption, the depositary shares so called for
redemption will no longer be deemed to be outstanding and all rights of the
holders of the depositary shares will cease, except the right to receive the
moneys payable upon such redemption and any money or other property to which
the holders of such depositary shares were entitled upon such redemption upon
surrender to the depositary of the depositary receipts evidencing such
depositary shares.
VOTING THE PREFERRED STOCK AND PREFERENCE STOCK
Upon receipt of notice of any meeting at which the holders of our
preferred stock or preference stock are entitled to vote, the depositary will
mail the information contained in such notice of meeting to the record holders
of the depositary shares relating to such preferred stock or preference stock.
Each record holder of such depositary shares on the record date (which will be
the same date as the record date for such preferred stock or preference stock)
will be entitled to instruct the depositary as to the exercise of the voting
rights pertaining to the number of shares of preferred stock or preference
stock underlying such holder's depositary shares. The depositary will
endeavor, insofar as practicable, to vote the number of shares of preferred
stock or preference stock underlying such depositary shares in accordance with
such instructions, and we will agree to take all action which may be deemed
necessary by the depositary in order to enable the depositary to do so. The
depositary will abstain from voting shares of preferred stock or preference
stock to the extent it does not receive specific instructions from the holders
of depositary shares relating to such preferred stock or preference stock.
AMENDMENT AND TERMINATION OF THE DEPOSITARY AGREEMENT
The form of depositary receipt evidencing the depositary shares and any
provision of the deposit agreement may at any time be amended by agreement
between us and the depositary. However, any amendment which materially and
adversely alters the rights of the existing holders of depositary shares will
not be effective unless such amendment has been approved by the record holders
of at least a majority of the depositary shares then outstanding. The deposit
agreement may be terminated by us or the depositary only if (1) all
outstanding depositary shares relating thereto have been redeemed or (2) there
has been a final distribution in respect of our preferred stock or preference
stock of the relevant series in connection with any liquidation, dissolution
or winding up of our company and such distribution has been distributed to the
holders of the related depositary shares.
CHARGES OF DEPOSITARY
We will pay all transfer and other taxes and governmental charges arising
solely from the existence of the depositary arrangements. We will pay charges
of the depositary in connection with the initial deposit of our preferred
stock and preference stock and any redemption of our preferred stock and
preference stock. Holders of depositary shares will pay other transfer and
other taxes and governmental charges and such other charges as are expressly
provided in the deposit agreement to be for their accounts.
MISCELLANEOUS
The depositary will forward to the holders of depositary shares all
reports and communications from us which are delivered to the depositary and
which we are required to furnish to the holders of the applicable preferred
stock or preference stock.
Neither we nor the depositary will be liable if prevented or delayed by
law or any circumstance beyond our control in performing our obligations under
the deposit agreement. Our obligations and the depositary's obligations under
the deposit agreement will be limited to performance in good faith of their
duties thereunder and they will not be obligated to prosecute or defend any
legal proceeding in respect of any depositary shares, preferred stock or
preference stock unless satisfactory indemnity is furnished. They may rely
upon written advice of counsel or
13
accountants, or information provided by persons presenting preferred stock or
preference stock for deposit, holders of depositary shares or other persons
believed to be competent and on documents believed to be genuine.
RESIGNATION AND REMOVAL OF DEPOSITARY
The depositary may resign at any time by delivering to us notice of its
election to do so, and we may at any time remove the depositary, any such
resignation or removal to take effect upon the appointment of a successor
depositary and its acceptance of such appointment. Such successor depositary
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.
DESCRIPTION OF WARRANTS
GENERAL
We may issue warrants, including warrants to purchase debt securities,
preferred stock, preference stock, depositary shares or common stock. Warrants
may be issued independently or together with any other securities described in
this prospectus and may be attached to or separate from such securities. Each
series of warrants will be issued under a separate warrant agreement to be
entered into between us and a warrant agent . The warrant agent will act
solely as our agent in connection with the warrants of such series and will
not assume any obligation or relationship of agency or trust for or with any
holders or beneficial owners of warrants. The summary of terms of the warrants
contained in this prospectus does not purport to be complete and is subject
to, and qualified in its entirety by reference to, the form of the warrant
agreement which will be filed with the SEC at or prior to the time of any
offering of warrants.
The prospectus supplement relating to a particular issue of warrants will
describe the terms of the warrants, including the following:
o the title of the warrants;
o the aggregate number of the warrants;
o the price or prices at which the warrants will be issued;
o the currency or currencies, including composite currencies, in which
the price of the warrants may be payable;
o the designation, aggregate principal amount and terms of securities
purchasable upon exercise of the warrants;
o if applicable, the designation and terms of the securities with
which the warrants are issued and the number of warrants issued with
each such security;
o if applicable, the date on and after which the warrants and
securities issued with them will be separately transferable;
o the price at which and currency or currencies, including composite
currencies, in which the securities purchasable upon exercise of the
warrants may be purchased;
o the date on which the right to exercise the warrants shall commence
and the date on which such right shall expire;
o if applicable, the minimum or maximum amount of the warrants which
may be exercised at any one time;
o information with respect to book-entry procedures, if any;
14
o if applicable, a discussion of certain United States Federal income
tax considerations; and
o any other terms of the warrants, including terms, procedures and
limitations relating to the exchange and exercise of the warrants.
DESCRIPTION OF DEBT SECURITIES
Our debt securities are to be issued under an Indenture, dated as of
March 1, 1986, and supplemented as of September 18, 1990, between us and The
Chase Manhattan Bank (as successor by merger to The Chase Manhattan Bank,
N.A.), which acts as Trustee, the form of which is filed as an exhibit to the
registration statement. The following summaries of certain provisions of the
Indenture do not purport to be complete and are subject to, and are qualified
in their entirety by reference to, all provisions of the Indenture, including
the definitions therein of certain terms. Wherever particular provisions or
defined terms of the Indenture are referred to, such provisions or defined
terms are incorporated herein by reference.
GENERAL
The Indenture does not limit the amount of debentures, notes or other
evidences of indebtedness that may be issued thereunder. The Indenture
provides that debt securities may be issued from time to time in one or more
series. As of March 31, 2002, $885.0 million principal amount of debt
securities were outstanding under the Indenture. The debt securities will be
our unsecured obligations and will rank on a parity with all other of our
unsecured and unsubordinated indebtedness.
The prospectus supplement relating to the particular debt securities
offered by such prospectus supplement will describe the following terms of the
debt securities:
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 at which the debt securities will bear interest,
if any, and the date from which such interest will accrue;
o the dates on which such interest will be payable and the regular
record dates for such interest payment dates;
o any mandatory or optional sinking fund or analogous provisions;
o the date, if any, after which, and the price or prices at which, the
debt securities may be redeemed at our option;
o any obligation of ours to convert the debt securities into stock or
other securities of our company or of any other corporation;
o any provision for the debt securities to be denominated, and
payments thereon to be made, in currencies other than the U.S.
dollar or in units based on or relating to such other currencies;
and
o any other terms of the series.
Unless otherwise indicated in the applicable prospectus supplement,
principal of (and premium, if any) and interest, if any, on the debt
securities will be payable, and transfers of the debt securities will be
registrable, at the office of the Trustee in the Borough of Manhattan, The
City of New York, provided that at our option payment of
15
interest may be made by check mailed to the address of the person entitled
thereto as it appears in the security register. (Sections 301, 305 and 1002)
Unless otherwise indicated in the applicable prospectus supplement, our
debt securities will be issued only in fully registered form without coupons
and, unless otherwise indicated in such prospectus supplement, in
denominations of $1,000 or any integral multiple thereof. (Section 302)
No service charge will be made for any registration of transfer or
exchange of debt securities, but we may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
(Section 305)
Special Federal income tax and other considerations relating to debt
securities denominated in foreign currencies or units of two or more foreign
currencies will be described in the prospectus supplement relating to such
debt securities.
Debt securities may be issued under the Indenture as original issue
discount securities to be sold at a substantial discount below their stated
principal amount. Special Federal income tax and other considerations relating
thereto will be described in the applicable prospectus supplement.
BOOK-ENTRY DEBT SECURITIES
The debt securities of a series may be issued in whole or in part in the
form of one or more global securities that will be deposited with, or on
behalf of, a depositary or its nominee identified in the applicable prospectus
supplement. In such a case, one or more global securities will be issued in a
denomination or aggregate denominations equal to the portion of the aggregate
principal amount of outstanding debt securities of the series to be
represented by such global security or securities. Unless and until it is
exchanged in whole or in part for debt securities in registered form, a global
security may not be registered for transfer or exchange except as a whole (1)
by the depositary to a nominee of the depositary, (2) by a nominee of the
depositary to either the depositary or another nominee of the depositary, (3)
by the depositary or any nominee to a successor depositary or a nominee of the
successor depositary and (4) in other specified circumstances as may be
described in the applicable prospectus supplement.
The specific terms of the depositary arrangement with respect to any
portion of a series of debt securities to be represented by a global security
will be described in the applicable prospectus supplement. However, we expect
that the following provisions will apply to depositary arrangements.
Unless otherwise specified in the applicable prospectus supplement, debt
securities which are to be represented by a global security to be deposited
with or on behalf of a depositary will be represented by a global security
registered in the name of depositary or its nominee. Upon the issuance of such
global security, and the deposit of such global security with or on behalf of
the depositary for such global security, the depositary will credit, on its
book-entry registration and transfer system, the respective principal amounts
of the debt securities represented by such global security to the accounts of
institutions that have accounts with such depositary or its nominee, referred
to as "participants". The accounts to be credited will be designated by the
underwriters or agents of such debt securities or by us, if such debt
securities are offered and sold directly by us. Ownership of beneficial
interests in such global security will be limited to participants or persons
that may hold interests through participants. Ownership of beneficial
interests by participants in such global security will be shown on, and the
transfer of that ownership interest will be effected only through, records
maintained by the depositary or its nominee for such global security.
Ownership of beneficial interests in such global security by persons that hold
through participants will be shown on, and the transfer of that ownership
interest within such participant will be effected only through, records
maintained by such participant. The laws of some jurisdictions require that
certain purchasers of securities take physical delivery of such securities in
certificated form. The foregoing limitations and such laws may impair the
ability to transfer beneficial interests in such global securities.
So long as the depositary for a global security, or its nominee, is the
registered owner of such global security, the depositary or such nominee, as
the case may be, will be considered the sole owner or holder of the debt
securities represented by such global security for all purposes under the
Indenture. Unless otherwise specified in the applicable
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prospectus supplement, owners of beneficial interests in such global security
will not be entitled to have debt securities of the series represented by such
global security registered in their names, will not receive or be entitled to
receive physical delivery of debt securities of such series in certificated
form and will not be considered the holders thereof for any purposes under the
Indenture. Accordingly, each person owning a beneficial interest in such
global security must rely on the procedures of the depositary and, if such
person is not a participant, on the procedures of the participant through
which such person owns its interest, to exercise any rights of a holder under
the Indenture. We understand that under existing industry practices, if we
request any action of holders or an owner of a beneficial interest in such
global security desires to give any notice or take any action a holder is
entitled to give or take under the Indenture, the depositary would authorize
the participants to give such notice or take such action, and participants
would authorize beneficial owners owning through such participants to give
such notice or take such action or would otherwise act upon the instructions
of beneficial owners owning through them.
Principal of and any premium and interest on a global security will be
payable in the manner described in the applicable prospectus supplement.
CERTAIN RESTRICTIONS
LIMITATION ON DEBT OF RESTRICTED SUBSIDIARIES
The Indenture provides that we will not permit any Restricted Subsidiary
to become liable for any Funded Debt, as such term is defined in the
Indenture, unless immediately thereafter the aggregate amount of the Funded
Debt of all Restricted Subsidiaries (other than Funded Debt owned by us or a
wholly owned Restricted Subsidiary) does not exceed 15% of Consolidated Net
Tangible Assets. The foregoing restriction will not prevent (a) any Restricted
Subsidiary from becoming liable for any Funded Debt for the purpose of
extending, renewing or refunding any Funded Debt of a Restricted Subsidiary
then outstanding, so long as the aggregate amount of the Funded Debt of all
Restricted Subsidiaries then outstanding (other than Funded Debt owned by us
or any wholly owned Restricted Subsidiary) is not thereby increased or (b) any
Restricted Subsidiary from becoming liable for Funded Debt to us or a wholly
owned Restricted Subsidiary. (Section 1004)
LIMITATION ON SECURED DEBT
The Indenture provides that we will not, and will not permit any
Restricted Subsidiary to, become liable for any indebtedness for borrowed
money secured by a mortgage, pledge, lien, security interest or encumbrance on
any Principal Property or on any shares of stock or indebtedness of any
Restricted Subsidiary ("Secured Debt"), or secure any Secured Debt, without
making effective provision for securing the principal amount of the debt
securities (and, if we so elect, any indebtedness of us or such Restricted
Subsidiary ranking equally with the debt securities) equally and ratably with
or prior to such secured indebtedness. This covenant will not apply to debt
secured by:
(a) mortgages on property, capital stock or indebtedness of any
corporation existing at the time it becomes a Subsidiary;
(b) mortgages on property existing at the time of its acquisition or to
secure the payment of all or any part of the purchase price of such
property or to secure any indebtedness incurred prior to, at the
time of, or within 180 days after, the acquisition of such property
for the purpose of financing all or any part of the purchase price
of such property;
(c) mortgages or liens on unimproved property to finance the cost of
improvements to such property;
(d) mortgages or liens securing indebtedness owed by a Restricted
Subsidiary to us or a wholly owned Restricted Subsidiary;
(e) mortgages in favor of certain governmental entities including
mortgages in connection with industrial revenue financing; or
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(f) extensions, renewals or replacements (or successive extensions,
renewals or replacements) of any of the foregoing, provided that
such extension, renewal or replacement is limited to all or any part
of the same property (plus improvements) that secured the
indebtedness extended, renewed or replaced.
Notwithstanding this covenant, we and our Restricted Subsidiaries may
incur or guarantee any Secured Debt without equally and ratably securing the
debt securities, provided that after giving effect thereto the aggregate
amount of such debt then outstanding (not including Secured Debt permitted
under the foregoing exceptions) and the aggregate value of Sale and Leaseback
Transactions, other than Sale and Leaseback Transactions permitted under
clauses (a) through (d) and (f) in the following paragraph, at such time does
not exceed 10% of Consolidated Net Tangible Assets. (Section 1005)
LIMITATION ON SALES AND LEASEBACKS
The Indenture provides that we will not, and will not permit any
Restricted Subsidiary to, enter into any Sale and Leaseback Transaction unless
(a) the Sale and Leaseback Transaction is entered into to finance the cost of
acquiring such property or is entered into prior to, at the time of, or within
180 days after, such acquisition for the purpose of financing all or any part
of the purchase price of such property, (b) the Sale and Leaseback Transaction
is entered into to finance the cost of improvements to such unimproved
property, (c) the Sale and Lease Transaction is one of certain types in which
the lessor is one of certain governmental entities, (d) the Sale and Lease
Transaction involves the extension, renewal or replacement (or the successive
extension, renewal or replacement) of the transactions referred to in clauses
(a) through (c) above, provided that such Sale and Leaseback Transaction is
limited to all or any part of the same property leased under the lease
extended, renewed or replaced (plus improvements on such property), (e) the
property involved is property that could be mortgaged without equally and
ratably securing the relevant debt security under the last sentence of the
preceding paragraph or (f) within 120 days of the Sale and Leaseback
Transaction an amount equal to the greater of (1) the net proceeds of the sale
of the property the subject of the Sale and Leaseback Transaction and (2) the
fair value of the property so leased at the time of entering into the Sale and
Leaseback Transaction, is applied to the retirement of our Funded Debt.
(Section 1006)
DEFINITIONS
The term "Restricted Subsidiary" means (a) any Subsidiary other than (1)
a Subsidiary substantially all the physical properties of which are located,
or substantially all the business of which is carried on, outside the United
States of America, its territories and possessions, or (2) a Subsidiary the
primary business of which consists of one or more of the following: (i)
purchasing accounts receivable, (ii) making loans secured by accounts
receivable or inventories or otherwise providing credit, (iii) making
investments in real estate or providing services directly related thereto or
otherwise engaging in the business of a finance or real estate investment
company, or (iv) leasing equipment, machinery, vehicles, rolling stock and
other articles for use of our business, or (3) certain named Subsidiaries; (b)
any Subsidiary described in subclauses (1), (2) and (3) of clause (a) above
which at the time of determination shall be a Restricted Subsidiary pursuant
to designation by our board of directors hereinafter provided for.
We may by resolution of our board of directors designate any Restricted
Subsidiary to be an Unrestricted Subsidiary, provided that it does not own a
Principal Property and, after giving effect thereto, such Subsidiary would be
permitted under the covenant described in "--Certain Restrictions--Limitations
on Debt of Restricted Subsidiaries" above to incur additional Funded Debt. We
may by resolution of our board of directors designate any Unrestricted
Subsidiary to be a Restricted Subsidiary. We may by resolution of our board of
directors designate a newly acquired or formed Subsidiary to be an
Unrestricted Subsidiary, provided such designation takes place not later than
90 days after such acquisition or formation.
The term "Principal Property" means any manufacturing or research
property, plant or facility of us or any Restricted Subsidiary except any
property that our board of directors by resolution declares is not of material
importance to the total business conducted by us and our Restricted
Subsidiaries as an entirety.
The term "Consolidated Net Tangible Assets" at any date means the total
amount of assets that under generally accepted accounting principles would be
included on a consolidated balance sheet of our company and our Restricted
Subsidiaries as of such date, less the sum of the following items, which would
then also be so included in
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accordance with generally accepted accounting principles: (a) related
depreciation, amortization and other valuation reserves, (b) investments (as
defined), less applicable reserves, in Unrestricted Subsidiaries, (c) all
treasury stock, goodwill, trade names, trademarks, patents, unamortized debt
discount and expense and other like intangibles and (d) all liabilities and
liability items of us and our Restricted Subsidiaries (including minority
interests in Restricted Subsidiaries held by persons other than us or wholly
owned Restricted Subsidiaries) except (i) the reserves deducted as described
in clauses (a) and (b) above, (ii) Funded Debt, (iii) provisions for deferred
income taxes and (iv) capital stock, surplus and surplus reserves.
The term "Sale and Leaseback Transaction" means any arrangement with any
bank, insurance company or other lender or investor, or to which any such
lender or investor is a party, providing for the leasing to us or any of our
Restricted Subsidiaries of any Principal Property (except a lease for a
temporary period not to exceed three years by the end of which it is intended
that the use of such Principal Property by the lessee will be discontinued or
a lease under which we or a wholly-owned Restricted Subsidiary is a lessor)
which has been or is to be sold or transferred by us or the relevant
Restricted Subsidiary to such lender or investor or to any person to whom
funds have been or are to be advanced by such lender or investor on the
security of such Principal Property.
The term "value", when used with respect to a Sale and Leaseback
Transaction, as of any particular time, the amount equal to the greater of (1)
the net proceeds of the sale of the Principal Property leased pursuant to such
Sale and Leaseback Transaction and (2) the fair value of the Principal
Property so leased at the time of entering into such Sale and Leaseback
Transaction (as determined by our board of directors), in either case divided
first by the number of full years in the term of the lease and then multiplied
by the number of full years of such term remaining at the time of
determination, without regard to any renewal or extension options contained in
the lease.
The term "Subsidiary" means a corporation more than 50% of the
outstanding voting stock of which is owned, directly or indirectly, by us or
by one or more other Subsidiaries, or by us and one or more other
Subsidiaries. The term "voting stock", when used with respect to the
definition of "Subsidiary", means stock which ordinarily has voting power for
the election of directors, whether at all times or only so long as no senior
class of stock has such voting power by reason of any contingency.
DEFEASANCE
The Indenture provides that we, at our option:
(a) will be discharged from any and all obligations in respect of any
series of debt securities (except for certain obligations to
register the transfer or exchange of debt securities of such series,
replace stolen, lost or mutilated debt securities of such series,
maintain paying agencies and hold moneys for payment in trust); or
(b) need not comply with certain restrictive covenants of the Indenture
(including those described under "--Certain Restrictions" above) in
each case if we irrevocably deposit with the Trustee, in trust, cash
or U.S. government obligations (as defined) from which the payment
of interest thereon and principal thereof 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
interest on, such series on the dates such payments are due in
accordance with the terms of such series.
To exercise any such option, we are required to deliver to the Trustee an
opinion of counsel to the effect that the deposit and related defeasance would
not cause the holders of such series to recognize income, gain or loss for
Federal income tax purposes and, in the case of a discharge pursuant to clause
(a) above, accompanied by a ruling to such effect received from or published
by the United States Internal Revenue Service. (Section 402)
EVENTS OF DEFAULT
The following are events of default under the Indenture with respect to
debt securities of any series:
(a) our failure to pay principal of or premium, if any, on any debt
security of that series when due;
(b) our failure to pay any interest on any debt security of that series
when due, continued for 30 days;
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(c) our failure to deposit any sinking fund payment, when due, in
respect of any debt security of that series;
(d) our failure to perform any of our other covenants in the Indenture
(other than a covenant included in the Indenture solely for the
benefit of a series of debt securities other than that series),
continued for 60 days after written notice as provided in the
Indenture;
(e) the acceleration of any indebtedness for money borrowed in an
aggregate principal amount exceeding $10,000,000 by us or any
Restricted Subsidiary under the terms of the instrument under which
such indebtedness is issued or secured, if such acceleration is not
annulled within 10 days after written notice as provided in the
Indenture;
(f) certain events in bankruptcy, insolvency or reorganization; and
(g) any other Event of Default provided with respect to debt securities
of that series. (Section 501) .
If any event of default with respect to debt securities of any series at
the time outstanding occurs and is continuing, either the Trustee or the
holders of at least 25% in principal amount of the outstanding debt securities
of that series (or, in the case of a default under clause (d), (e) or (f)
above, of all the outstanding debt securities), by notice in writing, may
declare the principal amount (or, if the debt securities of that series are
original issue discount securities, such portion of the principal amount as
may be specified in the terms of that series) of all the debt securities of
that series (or of all outstanding debt securities, as the case may be) to be
due and payable immediately. At any time after a declaration of acceleration
with respect to debt securities of any series (or of all outstanding debt
securities, as the case may be) has been made, but before a judgment or decree
based on acceleration has been obtained, the holders of a majority in
principal amount of the outstanding debt securities of that series (or of all
outstanding debt securities, as the case may be) may, under certain
circumstances, rescind and annul acceleration. (Section 502)
The Indenture provides that the Trustee will be under no obligation,
subject to the duty of the Trustee during default to act with the required
standard of care, to exercise any of its rights or powers under the Indenture
at the request or direction of any of the holders, unless such holders shall
have offered to the Trustee reasonable indemnity. (Section 603) Subject to
such provisions for indemnification of the Trustee, the holders of a majority
in principal amount of the outstanding debt securities of all series affected
(voting as one class) will have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee. (Section 512)
We will be required to furnish to the Trustee annually a statement as to
the performance by us of certain of our obligations under the Indenture and as
to any default in such performance. (Section 1007)
CERTAIN RIGHTS TO REQUIRE PURCHASE OF DEBT SECURITIES BY THE COMPANY UPON
SPECIFIED EVENTS.
The terms of the debt securities may provide that upon the occurrence of
specified events affecting us and such debt securities, each holder of debt
securities shall have the right, at such holder's option, to require us to
repurchase all or any part of such holder's debt securities within a specified
period of time after such occurrence. The terms and conditions of any such
right will be described in the applicable prospectus supplement.
MODIFICATION AND WAIVER
Modifications and amendments of the Indenture may be made by us and the
Trustee with the consent of the holders of 66 2/3% in principal amount of the
outstanding debt securities of all series affected by such modification or
amendment (voting as one class). However, no such modification or amendment
may, without the consent of the holder of each outstanding debt security
affected thereby:
o change the stated maturity date of the principal of, or any
installment of principal of, or interest on, any debt security;
o reduce the principal amount of, or the premium (if any) or interest
on, any debt security;
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o reduce the amount of principal of an original issue discount
security payable upon acceleration of the maturity thereof;
o change the place or currency of payment of principal of, or premium
(if any) or interest on, any debt security;
o impair the right to institute suit for the enforcement of any
payment on or with respect to any debt security; or
o reduce the percentage in principal amount of outstanding debt
securities of any series, the consent of whose holders is required
for modification or amendment of the Indenture or for waiver of
compliance with certain provisions of the Indenture or for waiver of
certain defaults. (Section 902)
The holders of a majority in principal amount of the outstanding debt
securities may on behalf of the holders of all debt securities waive
compliance by us with certain restrictive provisions of the Indenture
(including the restrictive covenants noted above). (Section 1008) The holders
of a majority in aggregate principal amount of the outstanding debt securities
of any series may on behalf of the holders of all debt securities of that
series waive any past default for such series specified in the terms thereof,
and the holders of a majority in aggregate principal amount of all outstanding
debt securities may on behalf of the holders of all debt securities waive any
past default applicable to all series, except in any such case for a default
in the payment of the principal of or premium on, if any, or interest on any
debt security or in the payment of any sinking fund installment with respect
to any debt security or in respect of a provision that under the Indenture
cannot be modified or amended without the consent of the holder of each
outstanding debt security of the series affected. (Section 513)
CONSOLIDATION, MERGER AND TRANSFER OF ASSETS
We may, without the consent of any holders of outstanding debt
securities, consolidate or merge with or into, or transfer or lease its assets
substantially as an entirety to any corporation or may acquire or lease the
assets of any person, provided that the corporation formed by such
consolidation or into which we are merged or which acquired or leases our
assets substantially as an entirety is organized under the laws of any U.S.
jurisdiction and has assumed our obligations on the debt securities and under
the Indenture, and that after giving effect to the transaction no event of
default, and no event that, after notice or lapse of time or both, would
become an event of default, shall have happened and be continuing, and that
certain other conditions are met. (Article Eight)
REGARDING THE TRUSTEE
We maintain banking relationships in the ordinary course of business with
the Trustee, including the making of investments through and borrowings from,
the Trustee.
DESCRIPTION OF STOCK PURCHASE CONTRACTS AND STOCK PURCHASE UNITS
The following is a general description of the terms of the stock purchase
contracts and stock purchase units we may issue from time to time. Particular
terms of any stock purchase contracts and/or stock purchase units we offer
will be described in the prospectus supplement relating to such stock purchase
contracts and/or stock purchase units. The description in the applicable
prospectus supplement is qualified in its entirety by reference to the forms
of stock purchase contracts, the collateral arrangements and depositary
arrangements, if applicable, which will be filed with the SEC at or prior to
the time of any offering of stock purchase contracts or stock purchase units.
We may issue stock purchase contracts, including contracts obligating
holders to purchase from us, and obligating us to sell to holders, a specified
number of shares of our common stock, preferred stock or preference stock (or
a range of numbers of shares pursuant to a predetermined formula) at a future
date. The consideration per share of common stock, preferred stock or
preference stock and the number of shares may be fixed at the time that the
stock purchase contracts are issued or may be determined by reference to a
specific formula set forth in the stock purchase contracts. Any stock purchase
contract may include anti-dilution provisions to adjust the number of shares
issuable pursuant to such stock purchase contract upon the occurrence of
certain events.
The stock purchase contracts may be issued separately or as a part of
units, which we refer to as stock purchase units, consisting of a stock
purchase contract and debt securities, trust preferred securities or debt
obligations of third parties, including U.S. Treasury securities, in each case
securing holders' obligations to purchase our common stock,
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preferred stock or preference stock under the stock purchase contracts. The
stock purchase contracts may require us to make periodic payments to holders
of the stock purchase units, or vice versa, and such payments may be unsecured
or prefunded. The stock purchase contracts may require holders to secure their
obligations thereunder in a specified manner.
DESCRIPTION OF TRUST PREFERRED SECURITIES
The following is a general description of the terms of the trust
preferred securities we may issue from time to time. Particular terms of any
trust preferred securities we offer will be described in the prospectus
supplement relating to such trust preferred securities.
Cummins Capital Trust II was formed pursuant to the execution of a
declaration of trust and the filing of a certificate of trust of such trust
with the Delaware Secretary of State. The declaration of trust of Cummins
Capital Trust II will be amended and restated prior to the issuance by such
trust of the trust preferred securities to include the terms referenced in
this prospectus and in the applicable prospectus supplement. The original
declaration of trust of Cummins Capital Trust II is filed as an exhibit to the
registration statement of which this prospectus forms a part and the amended
and restated declaration of trust of Cummins Capital Trust II will be
subsequently filed by us in a Current Report on Form 8-K, which will be
incorporated herein by reference.
Cummins Capital Trust II may issue only one series of trust preferred
securities. The declaration of trust for the trust will be qualified as an
indenture under the Trust Indenture Act. The trust preferred securities will
have the terms, including distributions, redemption, voting, liquidation,
conversion, if any, and such other preferred, deferred or other special rights
or such restrictions as shall be set forth in the applicable declaration of
trust or made part of the declaration of the trust by the Trust Indenture Act,
and which will mirror the terms of the subordinated debt securities held by
the trust and described in the applicable prospectus supplement. The following
summary does not purport to be complete and is subject in all respects to the
provisions of the applicable declaration and the Trust Indenture Act.
Reference is made to the prospectus supplement relating to the preferred
securities of the trust for specific terms, including:
o the designation of the trust preferred securities;
o the number of trust preferred securities issued by the trust;
o the annual distribution rate, or method of determining the rate, and
any conditions upon which distributions are payable, the
distribution payment dates and the record dates for distribution
payments for trust preferred securities issued by the trust and the
date or dates upon which distributions are payable;
o whether distributions on trust preferred securities issued by the
trust are cumulative, and, in the case of trust preferred securities
having cumulative distribution rights, the date or dates from which
distributions will be cumulative;
o the amount which shall be paid out of the assets of the trust to the
holders of trust preferred securities upon voluntary or involuntary
dissolution, winding-up or termination of the trust;
o the obligation or the option, if any, of the trust to purchase or
redeem trust preferred securities and the price or prices at which,
the period or periods within which, and the terms upon which, trust
preferred securities issued by the trust may be purchased or
redeemed;
o the voting rights, if any, of trust preferred securities in addition
to those required by law, including the number of votes per trust
preferred security and any requirement for the approval by the
holders of trust preferred securities, or of trust preferred
securities issued by one or more trusts, or of both, as a condition
to specified action or amendments to the declaration of the trust;
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o the terms and conditions, if any, upon which the subordinated debt
securities may be distributed to holders of trust preferred
securities;
o whether the trust preferred securities will be convertible or
exchangeable into common stock or other securities, and, if so, the
terms and conditions upon which the conversion or exchange will be
effected, including the initial conversion or exchange price or rate
and any adjustments thereto, the conversion or exchange period and
other conversion or exchange provisions;
o if applicable, any securities exchange upon which the trust
preferred securities shall be listed; and
o any other relevant rights, preferences, privileges, limitations or
restrictions of trust preferred securities issued by the trust not
inconsistent with its declaration or with applicable law.
We will guarantee all trust preferred securities offered hereby to the
extent set forth below under "Description of Trust Preferred Securities
Guarantees". Certain United States Federal income tax considerations
applicable to any offering of trust preferred securities will be described in
the applicable prospectus supplement.
In connection with the issuance of trust preferred securities, the trust
will issue one series of common securities having the terms including
distributions, redemption, voting and liquidation rights or such restrictions
as shall be set forth in its declaration. The terms of the common securities
will be substantially identical to the terms of the trust preferred securities
issued by the trust and the common securities will rank equal with, and
payments will be made thereon pro rata, with the trust preferred securities
except that, upon an event of default under the declaration of the trust, the
rights of the holders of the common securities to payment in respect of
distributions and payments upon liquidation, redemption and otherwise will be
subordinated to the rights of the holders of the trust preferred securities.
Except in certain limited circumstances, the common securities will carry the
right to vote to appoint, remove or replace any of the trustees of a trust.
Directly or indirectly, we will own all of the common securities of the trust.
DISTRIBUTIONS
Distributions on the trust preferred securities will be made on the dates
payable to the extent that the trust has funds available for the payment of
distributions in the trust's property account. The trust's funds available for
distribution to the holders of the trust securities will be limited to
payments received from us on the subordinated debt securities issued to the
trust in connection with the issuance of the trust preferred securities. We
will guarantee the payment of distributions out of monies held by the trust to
the extent set forth under "Description of Trust Preferred Securities
Guarantees" below.
DEFERRAL OF DISTRIBUTIONS
With respect to any subordinated debt securities issued to the trust, we
will have the right under the terms of the subordinated debt securities to
defer payments of interest on the subordinated debt securities by extending
the interest payment period from time to time on the subordinated debt
securities. As a consequence of our extension of the interest payment period
on subordinated debt securities held by the trust, distributions on the trust
preferred securities would be deferred during any such extended interest
payment period. The trust will give the holders of the trust preferred
securities notice of an extension period upon their receipt of notice from us.
If distributions are deferred, the deferred distributions and accrued interest
will be paid to holders of record of the trust preferred securities as they
appear on the books and records of the trust on the record date next following
the termination of the deferral period. The terms of any subordinated debt
securities issued to the trust, including the right to defer payments of
interest, will be described in the applicable prospectus supplement.
DISTRIBUTION OF SUBORDINATED DEBT SECURITIES
We will have the right at any time to dissolve the trust and, after
satisfaction of the liabilities of creditors of the trust as provided by
applicable law, to cause the distribution of subordinated debt securities
issued to the trust to the holders of the trust preferred securities in a
total stated principal amount equal to the total stated liquidation amount of
the trust preferred securities then outstanding.
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ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF PREFERRED SECURITIES
If an event of default under a declaration of trust occurs and is
continuing, then the holders of trust preferred securities of the trust would
rely on the enforcement by the property trustee of its rights as a holder of
the applicable series of subordinated debt securities against us. In addition,
the holders of a majority in liquidation amount of the trust preferred
securities of the trust will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the property
trustee or to direct the exercise of the trust or power conferred upon the
property trustee to exercise the remedies available to it as a holder of the
subordinated debt securities. If the property trustee fails to enforce its
rights under the applicable series of subordinated debt securities, a holder
of trust preferred securities of the trust may institute a legal proceeding
directly against us to enforce the property trustee's rights under the
applicable series of subordinated debt securities without first instituting
any legal proceeding against the property trustee or any other person or
entity.
Notwithstanding the foregoing, if an event of default under the
applicable declaration has occurred and is continuing and such event is
attributable to our failure to pay interest or principal on the applicable
series of subordinated debt securities on the date such interest or principal
is otherwise payable or in the case of redemption, on the redemption date,
then a holder of trust preferred securities of the trust may directly
institute a proceeding for enforcement of payment to such holder of the
principal of or interest on the applicable series of subordinated debt
securities having a principal amount equal to the aggregate liquidation amount
of the trust preferred securities of such holder on or after the respective
due date specified in the applicable series of subordinated debt securities.
In connection with such direct action, we will be subrogated to the rights of
such holder of trust preferred securities under the applicable declaration to
the extent of any payment made by us to such holder of trust preferred
securities in such direct action.
DESCRIPTION OF TRUST PREFERRED SECURITIES GUARANTEES
Set forth below is a summary of information concerning the trust
preferred securities guarantees which we will execute and deliver for the
benefit of the holders of trust preferred securities. Each trust preferred
securities guarantee will be qualified as an indenture under the Trust
Indenture Act. The trust preferred securities guarantee trustee will hold each
guarantee for the benefit of the holders of the trust preferred securities to
which it relates. The following summary does not purport to be complete and is
subject in all respects to the provisions of, and is qualified in its entirety
by reference to, the form of trust preferred securities guarantee, which is
filed as an exhibit to the registration statement of which this prospectus
forms a part, and the Trust Indenture Act.
To the extent set forth in the trust preferred securities guarantee, we
will irrevocably agree to pay in full on a subordinated basis to the holders
of the trust preferred securities, except to the extent paid by the trust, the
payments listed below as and when due, regardless of any defense, right of
set-off or counterclaim that the trust may have or assert other than the
defense of payment:
o any accrued and unpaid distributions required to be paid on the
trust preferred securities, to the extent that the trust has funds
available for those distributions;
o the redemption price with respect to any preferred securities called
for redemption to the extent that the trust has funds available for
those payments; or
o upon a voluntary or involuntary dissolution, winding up or
liquidation of the trust (unless the debentures are distributed to
holders of the trust preferred securities), the lesser of (1) the
liquidation distribution plus accrued and unpaid distributions
required to be paid on the preferred securities, to the extent that
the trust has funds available for those payments, and (2) the amount
of assets of the trust remaining available for distribution to
holders of the trust preferred securities.
Our obligation to make a guarantee payment may be satisfied by direct
payment of the required amounts by us to the holders of trust preferred
securities or by causing the applicable trust to pay the amounts to the
holders.
Each trust preferred securities guarantee will be an irrevocable
guarantee on a subordinated basis of the trust's obligations under the trust
preferred securities, but will apply only to the extent that the trust has
funds sufficient to
24
make such payments. If we do not make interest payments on the debentures held
by the trust, the trust will not pay distributions on the trust preferred
securities and will not have funds legally available to pay such
distributions. The trust preferred securities guarantee, when taken together
with our obligations under the trust agreement, the debentures and the
indenture, including our obligations to pay costs, expenses, debts and
liabilities of the trust other than with respect to the trust securities, will
provide a full and unconditional guarantee on a subordinated basis by us of
payments due on the trust preferred securities.
CERTAIN COVENANTS
In each trust preferred securities guarantee, we will covenant that, so
long as any trust preferred securities issued by the trust remain outstanding,
in certain circumstances we will not, and we will cause our subsidiaries not
to:
o declare or pay any dividends or distributions on, or redeem,
purchase, acquire, or make any liquidation payment with respect to,
any of our capital stock; or
o make any payment of principal of or interest or premium, if any, on
or repay or repurchase or redeem any debt securities (including
guarantees of indebtedness for money borrowed) that rank equally
with or junior to such debentures;
However, in such circumstances we may:
o make any dividend, redemption, liquidation, interest, principal or
guarantee payment where the payment is made by way of securities
(including capital stock) that rank equally with or junior to the
securities on which such dividend, redemption, interest, principal
or guarantee payment is being made;
o make redemptions or purchases of any rights pursuant to our
shareholders' rights plan or any successor to such rights plan and
the declaration of a dividend of such rights or the issuance of
stock under such plan in the future;
o make payments under the trust preferred securities guarantee;
o purchase common stock issued under any of our benefit plans for our
directors, officers or employees;
o make payments or distributions in connection with a reclassification
of our capital stock or the exchange or conversion of one series or
class of our capital stock for another series or class of our
capital stock; and
o purchase fractional interests in shares of our capital stock
pursuant to the conversion or exchange provisions of the capital
stock or the security being converted or exchanged.
AMENDMENTS AND ASSIGNMENT
Except for any changes that do not materially affect the rights of
holders of the trust preferred securities, in which case no vote will be
required, each trust preferred securities guarantee may not be amended without
prior approval of the holders of not less than a majority in aggregate
liquidation amount of the outstanding trust preferred securities. All
guarantees and agreements contained in a trust preferred securities guarantee
shall bind our successors, assigns, receivers, trustees and representatives
and shall inure to the benefit of the holders of the trust preferred
securities then outstanding.
TERMINATION
Each trust preferred securities guarantee will terminate as to the trust
preferred securities issued by the applicable trust:
o upon full payment of the redemption price of all trust preferred
securities of the trust;
25
o upon full payment of the amounts payable in accordance with the
declaration of the trust upon liquidation of the trust;
o upon conversion of all the trust preferred securities into our
common stock; or
o upon distribution of the debentures to the holders of the trust
preferred securities in exchange for all of the trust preferred
securities.
Each trust preferred securities guarantee will continue to be effective
or will be reinstated, as the case may be, if at any time any holder of trust
preferred securities issued by the applicable trust must restore payment of
any sums paid under the trust preferred securities or the trust preferred
securities guarantee.
EVENTS OF DEFAULT
An event of default under a trust preferred securities guarantee will
occur upon our failure to perform any of our payment or other obligations
under the trust preferred securities guarantee. The holders of a majority in
aggregate liquidation amount of the trust preferred securities will have the
right to direct the time, method and place of conducting any proceeding for
any remedy available to the trust preferred guarantee trustee in respect of
the guarantee or to direct the exercise of any trust or power conferred upon
the trust preferred guarantee trustee under such trust preferred securities
guarantee.
If the trust preferred guarantee trustee fails to enforce such trust
preferred securities guarantee, any holder of trust preferred securities may
institute a legal proceeding directly against us to enforce the holder's
rights under such guarantee, without first instituting a legal proceeding
against Cummins Capital Trust II, the guarantee trustee or any other person or
entity. In addition, any record holder of trust preferred securities shall
have the right, which is absolute and unconditional, to proceed directly
against us for enforcement of the trust preferred securities guarantee for
such payment. We waive any right or remedy to require that any action be
brought first against such trust or any other person or entity before
proceeding directly against us.
STATUS OF THE PREFERRED SECURITIES GUARANTEES
Unless otherwise indicated in an applicable prospectus supplement, the
trust preferred securities guarantees will constitute our unsecured
obligations and will rank:
o subordinate and junior in right of payment to all of our senior and
subordinated debt;
o equal in rank with any other guarantee similar to the guarantee
issued by us on behalf of the holders of trust preferred securities
issued by any other trust established by us or our affiliates;
o equal in right of payment with our most senior preferred or
preference stock; and
o senior to our common stock.
The trust preferred securities guarantees will constitute a guarantee of
payment and not merely of collection; that is, the guaranteed party may
institute a legal proceeding directly against the guarantor to enforce its
rights under the guarantee without first instituting a legal proceeding
against any other person or entity.
INFORMATION CONCERNING THE TRUST PREFERRED SECURITIES GUARANTEE TRUSTEE
The trust preferred securities guarantee trustee, other than during the
occurrence and continuance of a default in performance of a trust preferred
securities guarantee, will undertake to perform only such duties as are
specifically set forth in such trust preferred securities guarantee. During
the occurrence and continuance of a default under the trust preferred
securities guarantee, the trust preferred securities guarantee trustee will
exercise the same degree of care as a prudent person would exercise or use
under the circumstances in the conduct of his or her own affairs. The trust
preferred securities guarantee trustee will be under no obligation to exercise
any of the powers vested in it by a
26
trust preferred securities guarantee at the request of any holder of trust
preferred securities, unless offered reasonable indemnity against the costs,
expenses and liabilities which might be incurred.
GOVERNING LAW
The trust preferred securities guarantees will be governed by and
construed in accordance with the internal laws of the State of New York.
PLAN OF DISTRIBUTION
We may sell securities to one or more underwriters for public offering
and sale by them or may sell securities to investors directly or through
agents. Any such underwriter or agent involved in the offer and sale of
securities will be named in the applicable prospectus supplement. Any sale of
securities to one or more underwriters may include stand-by call arrangements
or other arrangements whereby an underwriter purchases securities directly or
indirectly from us in connection with a redemption of securities convertible
into securities.
The distribution of securities may be effected from time to time in one
or more transactions at a fixed price or prices, which may be changed, or from
time to time at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices. Each
prospectus supplement will describe the method of distribution of the offered
securities.
In connection with the sale of securities, underwriters or agents acting
on our behalf may be deemed to have received compensation from us in the form
of underwriting discounts or commissions and may also receive commissions from
purchasers of securities for whom they may act as agent. Underwriters may sell
securities to or through dealers, and such dealers may receive compensation in
the form of discounts, concessions or commissions from the underwriters and/or
commissions from the purchasers for whom they may act as agent.
Any underwriting compensation paid by us to underwriters or agents in
connection with the offering of securities, and any discounts, concessions or
commissions allowed by underwriters to participating dealers, will be set
forth in the applicable prospectus supplement. Underwriters, dealers and
agents participating in the distribution of securities may be deemed to be
underwriters, and any discounts and commissions received by them and any
profit realized by them on resale of securities may be deemed to be
underwriting discounts and commissions under the securities. Underwriters,
dealers and agents may be entitled, under agreements entered into with us, to
indemnification against and contribution toward certain civil liabilities,
including liabilities under the Securities Act.
If so indicated in the applicable prospectus supplement, we will
authorize underwriters acting as our agents to solicit offers by certain
institutions to purchase securities from us pursuant to delayed delivery
contracts providing for payment and delivery on the date or dates stated in
such prospectus supplement. Each delayed delivery contact will be for an
amount not less than, and the amount of securities sold pursuant to delayed
delivery contracts shall be not less nor more than, the respective amounts
stated in the prospectus supplement. Institutions with which delayed delivery
contracts, when authorized, may be made include commercial and savings banks,
insurance companies, pension funds, investments companies, educational and
charitable institutions and other institutions, but will in all cases be
subject to the our approval. The obligations of any purchaser under any
delayed delivery contract will not be subject to any conditions except that
(1) the purchase by an institution of the securities covered by its delayed
delivery contract shall not at the time of delivery be prohibited under the
laws of any jurisdiction in the United States to which such institution is
subject, and (2) if the securities are also being sold to underwriters, we
shall have sold to such underwriters the total principal amount of the
securities less the principal amount thereof covered by the delayed delivery
contracts. The underwriters and such other persons will not have any
responsibility in respect of the validity or performance of the delayed
delivery contracts.
VALIDITY OF SECURITIES
The validity of the common stock, preferred stock, preference stock,
depositary shares, debt securities, warrants, stock purchase contracts, stock
purchase units and guarantees offered by us will be passed upon for us by
Marya M. Rose, Esq., our Vice President-General Counsel. The validity of the
trust preferred securities offered by Cummins Capital Trust II will be passed
upon by Richards, Layton & Finger, P.A., Wilmington, Delaware.
27
EXPERTS
The consolidated financial statements and schedules included or
incorporated by reference in this prospectus and elsewhere in the registration
statement, to the extent and for the periods indicated in their report, have
been audited by Arthur Andersen LLP, independent public accountants, as
indicated in their reports with respect thereto, and are included or
incorporated by reference herein in reliance upon the authority of said firm
as experts in giving said reports.
28
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table itemizes the expenses incurred by the registrant in
connection with the issuance and distribution of the securities being
registered, other than underwriting discounts and commissions. All the amounts
shown are estimates, except the SEC registration fee.
SEC registration fee $ 0*
Accounting fees and expenses 30,000
Legal fees and expenses 100,000
Printing fees and expenses 50,000
Fees and expenses of trustees 15,000
Miscellaneous fees and expenses 18,000
--------
Total $213,000
- ---------------
* Includes the offset pursuant to Rule 457(p) of an aggregate registration
fee of $69,000, which we previously paid in connection with securities of
Cummins Inc., unsold under Registration Statement No. 333-42687.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Indiana Business Corporation Law (Indiana Code of 1986, Section
23-1-37) provides in regard to indemnification of directors and officers as
follows:
23-1-37-8. BASIS. (a) A corporation may indemnify an individual made a
party to a proceeding because the individual is or was a director against
liability incurred in the proceeding if:
(1) the individual's conduct was in good faith; and
(2) the individual reasonably believed:
(A) in the case of conduct in the individual's official
capacity with the corporation, that the individual's
conduct was in its best interests; and
(B) in all other cases, that the individual's conduct was at
least not opposed to its best interests; and
(3) in the case of any criminal proceeding, the individual either:
(A) had reasonable cause to believe the individual's conduct
was lawful; or
(B) had no reasonable cause to believe the individual's
conduct was unlawful.
(b) A director's conduct with respect to an employee benefit plan for a
purpose the director reasonably believed to be in the interests of the
participants in and beneficiaries of the plan is conduct that satisfies the
requirement of subsection (a)(2)(B).
(c) The termination of a proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent is not, of
itself, determinative that the director did not meet the standard of conduct
described in this Section.
II-1
23-1-37-9. AUTHORIZED. Unless limited by its articles of incorporation, a
corporation shall indemnify a director who was wholly successful, on the
merits or otherwise, in the defense of any proceeding to which the director
was a party because the director is or was a director of the corporation
against reasonable expenses incurred by the director in connection with the
proceeding.
23-1-37-13. OFFICERS, EMPLOYEES OR AGENTS. Unless a corporation's
articles of incorporation provide otherwise:
(1) An officer of the corporation, whether or not a director, is
entitled to mandatory indemnification under Section 9 of this chapter,
and is entitled to apply for court-ordered indemnification under Section
11 of this chapter, in each case to the same extent as a director;
(2) The corporation may indemnify and advance expenses under this
chapter to an officer, employee, or agent of the corporation, whether or
not a director, to the same extent as to a director; and
(3) A corporation may also indemnify and advance expenses to an
officer, employee, or agent, whether or not a director, to the extent,
consistent with public policy, that may be provided by its articles of
incorporation, bylaws, general or specific action of its board of
directors, or contract.
23-1-37-15. REMEDY NOT EXCLUSIVE OF OTHER RIGHTS. (a) The indemnification
and advance for expenses provided for or authorized by this chapter does not
exclude any other rights to indemnification and advance for expenses that a
person may have under:
(1) A corporation's articles of incorporation or bylaws;
(2) A resolution of the board of directors or of the shareholders; or
(3) Any other authorization, whenever adopted, after notice, by a
majority vote of all the voting shares then issued and outstanding.
(b) If the articles of incorporation, bylaws, resolutions of
the board of directors or of the shareholders, or other duly adopted
authorization of indemnification or advance for expenses limit
indemnification or advance for expenses, indemnification and advance
for expenses are valid only to the extent consistent with the
articles, bylaws, resolution of the board of directors or of the
shareholders, or other duly adopted authorization of indemnification
or advance for expenses.
(c) This chapter does not limit a corporation's power to pay or
reimburse expenses incurred by a director, officer, employee, or
agent in connection with the person's appearance as a witness in a
proceeding at a time when the person has not been made a named
defendant or respondent to the proceeding.
Reference is made to Article VI, Section 6.2 of Cummins' by-laws (filed
as an exhibit to Cummins' quarterly report on Form 10-Q for the quarter ended
October 2, 1994, which is incorporated by reference herein), which, under
certain circumstances, permits indemnification by Cummins of its officers and
directors. In general, Cummins' by-laws permit indemnification if: (1) the
indemnified person acted in good faith for a purpose which he reasonably
believed to be in the best interest of Cummins; (2) in the case of an action
brought by or in the right of Cummins to procure a judgment in its favor, the
indemnified person has not been found liable for negligence or misconduct in
the performance of his duty to Cummins; and (3) in criminal actions, the
indemnified person had no reasonable cause to believe his conduct to be
unlawful. Any such person would be entitled to indemnification as a matter of
right if he has been wholly successful, on the merits, with respect to any
such actions; if not, his indemnification would be dependent on a
determination by the board of directors acting by disinterested members, or by
independent legal counsel, or shareholders, that the required standards of
conduct have been met. Conviction or a plea of nolo contendere in a criminal
action would not of itself preclude indemnification. Indemnification could
include reasonable expenses of the indemnified person, judgments, fines and
settlement payments, but could not include any amount payable by any such
person to Cummins in satisfaction of any judgment or settlement. The by-laws
authorize
II-2
Cummins to advance funds for expenses to an indemnified person, but only
against an undertaking that he will repay the same unless it shall ultimately
be determined that he is entitled to indemnification. The rights of
indemnification provided by the by-law would not be exclusive of any other
rights to which any indemnified person may otherwise be entitled, and such
rights would extend to the heirs and legal representatives of such person.
Cummins also maintains a directors' and officers' liability insurance
policy providing coverage up to $35,000,000 for each occurrence for all
corporate directors and officers acting in their respective capacities.
Any underwriters or agents referred to in the agreement filed as Exhibit
1.1 to this registration statement will agree to indemnify, under certain
conditions, Cummins, its directors and certain of its officers and controlling
persons against certain liabilities that might arise under the Securities Act
of 1933 from information furnished to Cummins by or on behalf of any such
indemnity party.
ITEM 16. EXHIBITS.
No. Description
*1.1 Form of Underwriting Agreement
**4.1 Rights Agreement, as amended (incorporated by reference to the
Annual Report on Form 10-K for the year ended December 31, 1989,
by reference to Form 8-K dated July 13, 1990, by reference to Form
8-A dated November 6, 1990, by reference to Form 8-A/A dated
November 1, 1993, by reference to Form 8-A/A dated January 12,
1994 and by reference to Form 8-A/A dated July 15, 1996)
**4.2 Indenture dated as of March 1, 1986 and supplemented as of
September 18, 1990 between Cummins Inc. and The Chase Manhattan
Bank, N.A., as Trustee (incorporated by reference to the Quarterly
Report on Form 10-Q for the quarter ended July 3, 1988)
*4.3 Form of Certificate of Designations of Preferred Stock
*4.4 Form of Certificate of Designations of Preference Stock
*4.5 Form of Specimen Stock Certificate with respect to Preferred Stock
*4.6 Form of Specimen Stock Certificate with respect to Preference
Stock
*4.7 Form of Deposit Agreement (including form of Depositary Receipt
for Depositary Shares)
**4.8 Specimen Stock Certificate with respect to Common Stock
(incorporated by reference to Exhibit 4.6 to Amendment No. 1 to
the Registration Statement on Form S-3 (Registration Statement No.
33-50665) filed with the Commission on October 28, 1993)
*4.9 Form of Warrant Agreement (including Form of Warrant Certificate)
*4.10 Form of Stock Purchase Contract
*4.11 Form of Stock Purchase Unit
**4.12 Certificate of Trust of Cummins Capital Trust II
**4.13 Declaration of Trust of Cummins Capital Trust II
**4.14 Form of Trust Preferred Securities Guarantee Agreement
(incorporated by reference to Exhibit 4.3 to the Quarterly Report
on Form 10-Q for the quarter ended June 24, 2001)
**4.15 Form of Amended and Restated Declaration of Trust of Cummins
Capital Trust II (incorporated by reference to Exhibit 4.2 to the
Quarterly Report on Form 10-Q for the quarter ended June 24, 2001)
**5.1 Opinion of Marya M. Rose, Esq. as to the legality of the common
stock, preferred stock, preference stock, depositary shares, debt
securities, warrants, stock purchase contracts and stock purchase
units of Cummins Inc.
**5.2 Opinion of Richards, Layton & Finger, P.A. as to the legality of
the trust preferred securities of Cummins Capital Trust II
**12.1 Statement re computations of ratio of earnings to fixed charges
and ratio of earnings to fixed charges and preferred stock and
preference stock dividends
**23.1 Consent of Arthur Andersen LLP
**23.2 Consent of Marya M. Rose, Esq. (included in Exhibit 5.1)
**23.3 Consent of Richards, Layton & Finger, P.A. (included in Exhibit 5.2)
**24.1 Powers of Attorney
**24.2 Certified copy of a Resolution adopted by the Board of Directors
of Cummins Inc. authorizing execution of the Registration Statement
by Power of Attorney
II-3
***25.1 Statement of Eligibility and Qualification on Form T-1 of The
Chase Manhattan Bank to act as Trustee under the Indenture
***25.2 Statement of Eligibility and Qualification on Form T-1 of BNY
Midwest Trust Company to act as Property Trustee with respect to
the Trust Preferred Securities
***25.3 Statement of Eligibility and Qualification on Form T-1 of BNY
Midwest Trust Company to act as Guarantee Trustee with respect to
the Trust Preferred Securities Guarantees
- ----------------------
* To be filed by an amendment or as an exhibit to a document filed under
the Securities Exchange Act of 1934 and incorporated by reference herein.
** Previously filed.
*** Filed herewith.
ITEM 17. UNDERTAKINGS.
(A) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this 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 this registration statement; provided, however, that
notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered
would not exceed that which was being 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 Securities and
Exchange Commission pursuant to Rule 424(b), if, in the aggregate,
the changes in volume and price represent no more than a 20% change
in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this registration
statement or any material change to such information in this
registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934 that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(B) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions described under
Item 15 above, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange
II-4
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted against the registrant by such director,
officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Cummins Inc.
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Columbus, State of Indiana on May 21, 2002.
CUMMINS INC.,
By: /s/ Tom Linebarger
--------------------------
Name: Tom Linebarger
Title: Vice President and Chief
Financial Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW ON THE 21ST DAY OF MAY, 2002 BY
THE FOLLOWING PERSONS IN THE CAPACITIES INDICATED.
Name Title Date
Director and Chairman May 21, 2002
of the Board of
Directors and Chief
* Executive Officer
- -------------------------------- (Principal Executive
Theodore M. Solso Officer)
Vice President and May 21, 2002
Chief Financial
/s/ Tom Linebarger Officer (Principal
- -------------------------------- Financial Offer)
Tom Linebarger
Vice President - May 21, 2002
Corporate Controller
/s/ Susan K. Carter (Principal Accounting
- -------------------------------- Officer)
Susan K. Carter
* Director May 21, 2002
- --------------------------------
Robert J. Darnal
* Director May 21, 2002
- --------------------------------
John M. Deutch
* Director May 21, 2002
- --------------------------------
Walter Y. Elisha
* Director May 21, 2002
- --------------------------------
Alexis M. Herman
* Director May 21, 2002
- --------------------------------
William I. Miller
* Director May 21, 2002
- --------------------------------
William D. Ruckelshaus
* Director May 21, 2002
- --------------------------------
Franklin A. Thomas
* Director May 21, 2002
- --------------------------------
J. Lawrence Wilson
III-1
/s/ Tom Linebarger
*By: ------------------------------------
Tom Linebarger (Attorney-In-Fact)
Pursuant to the requirements of the Securities Act of 1933, Cummins
Capital Trust II certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Columbus, State of Indiana on May
21, 2002.
CUMMINS CAPITAL TRUST II,
By: CUMMINS INC., As Depositor
By: /s/ Tom Linebarger
-----------------------------
Name: Tom Linebarger
Title: Vice President and Chief
Financial Officer
III-2
INDEX TO EXHIBITS
*1.1 Form of Underwriting Agreement
**4.1 Rights Agreement, as amended (incorporated by reference to the
Annual Report on Form 10-K for the year ended December 31, 1989,
by reference to Form 8-K dated July 13, 1990, by reference to Form
8-A dated November 6, 1990, by reference to Form 8-A/A dated
November 1, 1993, by reference to Form 8-A/A dated January 12,
1994 and by reference to Form 8-A/A dated July 15, 1996)
**4.2 Indenture dated as of March 1, 1986 and supplemented as of
September 18, 1990 between Cummins Inc. and The Chase Manhattan
Bank, N.A., as Trustee (incorporated by reference to the Quarterly
Report on Form 10-Q for the quarter ended July 3, 1988)
*4.3 Form of Certificate of Designations of Preferred Stock
*4.4 Form of Certificate of Designations of Preference Stock
*4.5 Form of Specimen Stock Certificate with respect to Preferred Stock
*4.6 Form of Specimen Stock Certificate with respect to Preference
Stock
*4.7 Form of Deposit Agreement (including form of Depositary Receipt
for Depositary Shares)
**4.8 Specimen Stock Certificate with respect to Common Stock
(incorporated by reference to Exhibit 4.6 to Amendment No. 1 to
the Registration Statement on Form S-3 (Registration Statement No.
33-50665) filed with the Commission on October 28, 1993)
*4.9 Form of Warrant Agreement (including Form of Warrant Certificate)
*4.10 Form of Stock Purchase Contract
*4.11 Form of Stock Purchase Unit
**4.12 Certificate of Trust of Cummins Capital Trust II
**4.13 Declaration of Trust of Cummins Capital Trust II
**4.14 Form of Trust Preferred Securities Guarantee Agreement
(incorporated by reference to Exhibit 4.3 to the Quarterly Report
on Form 10-Q for the quarter ended June 24, 2001)
**4.15 Form of Amended and Restated Declaration of Trust of Cummins
Capital Trust II (incorporated by reference to Exhibit 4.2 to the
Quarterly Report on Form 10-Q for the quarter ended June 24, 2001)
**5.1 Opinion of Marya M. Rose, Esq. as to the legality of the common
stock, preferred stock, preference stock, depositary shares, debt
securities, warrants, stock purchase contracts and stock purchase
units of Cummins Inc.
**5.2 Opinion of Richards, Layton & Finger, P.A. as to the legality of
the trust preferred securities of Cummins Capital Trust II
**12.1 Statement re computations of ratio of earnings to fixed charges
and ratio of earnings to fixed charges and preferred stock and
preference stock dividends
**23.1 Consent of Arthur Andersen LLP
**23.2 Consent of Marya M. Rose, Esq. (included in Exhibit 5.1)
**23.3 Consent of Richards, Layton & Finger, P.A. (included in Exhibit 5.2)
**24.1 Powers of Attorney
**24.2 Certified copy of a Resolution adopted by the Board of Directors of
Cummins Inc. authorizing execution of the Registration Statement by
Power of Attorney
***25.1 Statement of Eligibility and Qualification on Form T-1 of The
Chase Manhattan Bank to act as Trustee under the Indenture
***25.2 Statement of Eligibility and Qualification on Form T-1 of BNY
Midwest Trust Company to act as Property Trustee with respect to
the Trust Preferred Securities
***25.3 Statement of Eligibility and Qualification on Form T-1 of BNY
Midwest Trust Company to act as Guarantee Trustee with respect to
the Trust Preferred Securities Guarantees
______________________
* To be filed by an amendment or as an exhibit to a document filed under the
Securities Exchange Act of 1934 and incorporated by reference herein.
** Previously filed.
*** Filed herewith.
IV-1