AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 18, 1997
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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BECTON, DICKINSON AND COMPANY
(Exact name of Registrant as specified in its charter)
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NEW JERSEY 22-0760120
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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1 Becton Drive,
Franklin Lakes, New Jersey 07417-1880
(201) 847-6800
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
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JOHN W. GALIARDO
VICE CHAIRMAN AND GENERAL COUNSEL
BECTON, DICKINSON AND COMPANY
1 BECTON DRIVE, FRANKLIN LAKES, NEW JERSEY 07417-1880
(201) 847-6800
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration 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 number of the earlier effective registration statement for the same
offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
TITLE OF EACH CLASS AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
OF SECURITIES TO BE REGISTERED TO BE AGGREGATE PRICE PER AGGREGATE OFFERING REGISTRATION FEE
REGISTERED UNIT PRICE
Debt Securities $300,000,000 (1) 100 % (2) $300,000,000(2) $90,909
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Warrants to Purchase Debt Securities (3)
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(1) Or, if any Debt Securities are issued (i) at an original issue discount,
such greater principal amount as shall result in an aggregate initial offering
price of not more than $300,000,000 or (ii) with a principal amount denominated
in a foreign or composite currency, such principal amount as shall result in an
aggregate initial offering price equivalent to $300,000,000.
(2) Estimated solely for the purposes of determining the registration fee.
Exclusive of accrued interest, if any.
(3) Warrants may be issued to purchase Debt Securities. The amount to be
registered is the maximum aggregate principal amount of Debt Securities to be
issued with or without any such Warrants and includes all Debt Securities
deliverable upon the exercise of such Warrants.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any state in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such state.
SUBJECT TO COMPLETION, DATED MARCH 18, 1997
BECTON, DICKINSON AND COMPANY
DEBT SECURITIES AND WARRANTS TO PURCHASE DEBT SECURITIES
Becton, Dickinson and Company (the "Company") from time to time may offer, at
an aggregate initial offering price not to exceed $300,000,000, its unsecured
debt securities consisting of debentures, notes or other unsecured evidences of
indebtedness (the "Debt Securities") and warrants to purchase Debt Securities
(the "Warrants" and, together with the Debt Securities, the "Securities"). The
Debt Securities and Warrants may be offered, separately or together, in separate
series, in amounts, at prices and on terms to be determined at the time of sale
and to be set forth in supplements to this Prospectus (each, a "Prospectus
Supplement"). The Company may sell the Securities to or through underwriters,
and also may sell the Securities directly to other purchasers or through agents.
See "Plan of Distribution."
The terms of the Securities, including with respect to the Debt Securities,
the specific designation, aggregate principal amount, denominations, maturity,
rate (which may be fixed or variable) and time of payment of interest, if any,
and terms for redemption, and, with respect to any Warrants, where applicable,
the offering price, exercise price, duration and detachability, and the names
and compensation of any underwriters or agents and the other terms in connection
with the offering and sale of the Securities in respect of which this Prospectus
is being delivered, will be set forth in the Prospectus Supplement relating to
such Securities. As used herein, Securities shall include securities
denominated in United States dollars or, at the option of the Company, if so
specified in the applicable Prospectus Supplement, in any other currency,
including composite currencies. This Prospectus may not be used to consummate
sales of Securities unless accompanied by the Prospectus Supplement applicable
to the Securities being sold.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION NOR HAS THE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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THE DATE OF THIS PROSPECTUS IS MARCH , 1997
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS OR
ANY PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY
OR ANY UNDERWRITER, DEALER OR AGENT. THIS PROSPECTUS AND ANY PROSPECTUS
SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO
BUY ANY OF THE SECURITIES IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS
UNLAWFUL TO MAKE SUCH AN OFFER IN SUCH JURISDICTION. NEITHER THE DELIVERY OF
THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER OR
THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS
BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THEREOF OR
THAT INFORMATION CONTAINED OR INCORPORATED BY REFERENCE HEREIN OR THEREIN IS
CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN TRANSACTIONS THAT
STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE PRICE OF THE SECURITIES, INCLUDING
OVERALLOTMENT, STABILIZING AND SHORT COVERING TRANSACTIONS IN SUCH SECURITIES,
AND THE IMPOSITION OF A PENALTY BID, DURING AND AFTER THE OFFERING. FOR A
DESCRIPTION OF THESE ACTIVITIES, SEE "PLAN OF DISTRIBUTION."
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Reports, proxy
statements and other information filed by the Company can be inspected and
copied at the public reference facilities maintained by the Commission at Room
1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the Commission's
Regional Offices located at 7 World Trade Center, Suite 1300, New York, New York
10048, and 500 West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies
of such materials can also be obtained upon written request from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549, at prescribed rates. The Commission maintains a World Wide Web site that
contains reports, proxy and information statements and other information
regarding registrants that file electronically with the Commission. The address
of the site is http://www.sec.gov. The Company's Common Stock is listed on the
New York Stock Exchange, and reports, proxy statements and other information
concerning the Company can also be inspected and copied at the offices of the
New York Stock Exchange, 20 Broad Street, New York, New York 10005.
This Prospectus does not contain all of the information contained in the
Registration Statement filed by the Company with the Commission under the
Securities Act of 1933, as amended (the "Securities Act"), and reference is
hereby made to the Registration Statement and to the exhibits thereto for
further information with respect to the Company and the Securities offered
hereby.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which are on file with the Commission pursuant to the
Exchange Act (File No. 1-4802), are incorporated herein by reference and made a
part hereof:
(a) The Company's most recently filed Annual Report on Form 10-K;
(b) The Company's Quarterly Reports on Form 10-Q filed since the end of the
Company's fiscal year covered by its most recent Annual Report on Form 10-K;
(c) The Company's Current Reports on Form 8-K filed since the end of the
Company's fiscal year covered by its most recent Annual Report on Form 10-K; and
(d) All other documents filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act, filed since the end of the Company's
fiscal year covered by its most recent Annual Report on Form 10-K and prior to
the termination of the offering of the Securities hereunder.
Any statement contained in a document, all or a portion of which is
incorporated or deemed to be incorporated by reference herein, shall be deemed
to be modified or superseded for purposes of this Prospectus to the extent that
a statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified shall not be deemed
to constitute a part of this Prospectus except as so modified, and any statement
so superseded shall not be deemed to constitute a part of this Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom a copy of this Prospectus is delivered, upon the
written or oral request of any such person, a copy of any and all of the
documents incorporated herein by reference, other than exhibits to such
documents (unless such exhibits are specifically incorporated by reference into
such documents). Requests for such copies should be directed to the Secretary,
Becton, Dickinson and Company, 1 Becton Drive, Franklin Lakes, New Jersey 07417-
1880, telephone (201) 847-6800.
THE COMPANY
The Company was incorporated under the laws of the State of New Jersey in
November 1906, as successor to a New York business started in 1897. Its
executive offices are located at 1 Becton Drive, Franklin Lakes, New Jersey
07417-1880 and its telephone number is (201) 847-6800. All references herein to
the "Company" refer to Becton, Dickinson and Company and its domestic and
foreign subsidiaries unless otherwise indicated by the context.
The Company is engaged principally in the manufacture and sale of a broad line
of medical supplies and devices and diagnostic systems used by health care
professionals, medical research institutions and the general public. The
Company's operations are comprised of two worldwide business segments, Medical
Supplies and Devices ("Medical") and Diagnostic Systems ("Diagnostic").
The major products in the Company's Medical segment are hypodermic products,
specially designed devices for diabetes care, prefillable drug delivery systems,
vascular access products and specialty and surgical blades. The Medical segment
also includes specialty needles, drug infusion systems, disposable scrubs,
elastic support products and thermometers.
The major products in the Company's Diagnostic segment are manual and
instrumented microbiology products, sample collection products, flow cytometry
systems for cellular analysis, tissue culture labware, hematology instruments
and other diagnostic systems, including immunodiagnostic test kits.
The Company's products are manufactured and sold worldwide. The principal
markets for the Company's products outside of the United States are Europe,
Japan, Mexico, Asia Pacific, Canada and Brazil. The principal products sold by
the Company outside the United States are hypodermic needles and syringes,
diagnostic systems, VACUTAINER (R) brand sample collection products, HYPAK (R)
brand prefillable syringe systems and infusion therapy products. The Company
has manufacturing operations in Australia, Brazil, China, France, Germany,
Ireland, Japan, Mexico, Singapore, Spain, the United Kingdom and the United
States, and in 1996 commenced construction of a hypodermic syringe manufacturing
facility in India.
The Company's products and services are marketed in the United States both
through independent distribution channels and directly to end-users. The
Company's products are marketed outside of the United States through independent
distributors and sales representatives, and in some markets directly to end-
users.
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USE OF PROCEEDS
Except as may be set forth in the Prospectus Supplement with respect to any
Securities, the net proceeds to the Company from the sale of the Securities
offered hereby will be added to the general funds of the Company and may be used
to repay outstanding debt and to meet capital expenditure and working capital
requirements. The Company has not allocated a specific portion of the net
proceeds for any particular use at this time. Pending application of the net
proceeds, such proceeds may be invested in marketable securities.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges for the
Company for the periods indicated.
THREE MONTHS YEAR ENDED SEPTEMBER 30,
ENDED DECEMBER ----------------------------
31, 1996 1996 1995 1994 1993 1992
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Ratio of Earnings to Fixed Charges
(unaudited)........................ 5.56 6.25 5.43 4.59 3.49 3.68
Earnings used to compute this ratio are earnings before income taxes and the
cumulative effect of accounting changes and before fixed charges (excluding, for
purposes of such computation, interest capitalized during the period) and after
excluding undistributed earnings and losses of minority-owned affiliates. Fixed
charges consist of interest, whether expensed or capitalized, amortization of
debt discount and expense and the portion of rental expense representative of an
interest factor.
DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general terms and provisions of
the Debt Securities to which any Prospectus Supplement may relate. The
particular terms of the Debt Securities offered by any Prospectus Supplement and
the extent, if any, to which such general provisions may apply to the Debt
Securities so offered will be described in the Prospectus Supplement relating to
such Debt Securities.
The Debt Securities are to be issued under an Indenture, dated as of March 1,
1997 (the "Indenture"), between the Company and The Chase Manhattan Bank, as
Trustee (the "Trustee") (a copy of which is filed with the Commission as an
exhibit to the Registration Statement of which this Prospectus is a part). 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 of the provisions of the Indenture, including the definitions therein of
certain terms capitalized in this Prospectus. Wherever particular provisions or
defined terms of the Indenture are referred to, such provisions or defined terms
are incorporated herein by reference.
GENERAL
The Debt Securities will be unsecured and unsubordinated obligations of the
Company. The Indenture does not limit the aggregate principal amount of Debt
Securities which may be issued thereunder and provides that Debt Securities may
be issued thereunder from time to time in one or more series.
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The Debt Securities will be issued in registered form without coupons unless
otherwise provided in a supplemental indenture or Board Resolution (Section
2.03). Unless otherwise provided in a Prospectus Supplement, principal (unless
the context otherwise requires, "principal" includes premium, if any) of and any
interest on the Debt Securities will be payable, and the Debt Securities will be
exchangeable and transfers thereof will be registrable, at an office or agency
designated for the Debt Securities, provided that, at the option of the Company,
payment of interest may be made by check to the address of the Person entitled
thereto as it appears in the Security Register (Sections 2.04 and 2.06). Subject
to the limitations provided in the Indenture, such services will be provided
without charge, other than any tax or other governmental charge payable in
connection therewith (Section 2.06).
Reference is made to the Prospectus Supplement for the following terms of the
Debt Securities of each series offered thereby (to the extent such terms are
applicable to such Debt Securities): (a) the designation of the Debt Securities
of the series; (b) any limit upon the aggregate principal amount of the Debt
Securities of the series and any limitation on the ability of the Company to
increase such aggregate principal amount after the initial issuance of such Debt
Securities; (c) any date on which the principal of the Debt Securities of the
series is payable (which date may be fixed or extendible); (d) any rate (which
may be fixed or variable) per annum at which any Debt Securities of the series
shall bear interest, any interest accrual, payment and record dates and/or any
method by which any such rate or date shall be determined; (e) if other than as
provided in the Indenture, any place where principal of and interest on Debt
Securities of the series shall be payable, where Debt Securities of the series
may be surrendered for exchange, where notices or demands may be served and
where notice to Holders may be published and any time of such payment at any
place of payment; (f) any right of the Company to redeem Debt Securities of the
series and any terms thereof; (g) any obligation of the Company to redeem,
purchase or repay Debt Securities of the series and any terms thereof; (h) if
other than denominations of $1,000 and any integral multiple thereof, the
denominations in which Debt Securities of the series shall be issuable; (i) if
other than the principal amount thereof, the portion of the principal amount of
Debt Securities of the series which shall be payable upon declaration of
acceleration of the maturity thereof; (j) if other than the coin or currency in
which the Debt Securities of the series are denominated, the coin or currency in
which payment of the principal of or interest on the Debt Securities of the
series shall be payable or, if the amount of any payments of principal of and/or
interest on the Debt Securities of the series may be determined with reference
to an index based on a coin or currency other than that in which the Debt
Securities of the series are denominated, the manner in which such amounts shall
be determined; (k) if other than the currency of the United States of America,
the currency or currencies, including composite currencies, in which payment of
the principal of and interest on the Debt Securities of the series shall be
payable, and the manner in which any such currencies shall be valued against
other currencies in which any other Debt Securities shall be payable; (l) any
obligation of the Company to pay additional amounts on the Debt Securities of
the series in respect of any tax, assessment or governmental charge withheld or
deducted and any right of the Company to redeem such Debt Securities rather than
pay such additional amounts; (m) any provisions for the Debt Securities of the
series to be issued in bearer form, with or without coupons, and if the Debt
Securities of the series are to be issuable in definitive form (whether upon
original issue or upon exchange of a temporary Debt Security of such series)
only upon receipt of certain certificates or other documents or satisfaction of
other conditions, the form and terms of such certificates, documents or
conditions; (n) if other than the Person acting as Trustee, any Agent acting
with respect to the Debt Securities of the series; (o) any provisions for the
defeasance of any Debt Securities of the series in addition to, in substitution
for or in modification of the provisions described in "Defeasance and Covenant
Defeasance;" (p) the identity of any Depositary for Registered Global Securities
of the series other than The Depository Trust Company and any circumstances
other than those described in "Global Securities" in which any Person may have
the right to obtain Debt Securities in exchange therefor; (q) any provisions for
Events of Default applicable to any Debt Securities of the series in addition
to, in substitution for or in modification of those described in "Events of
Default;" (r) any provision for covenants applicable to any Debt Securities of
the series in addition to, in substitution for or in modification of those
described in "Covenants;" and (s) any other terms of the Debt Securities of the
series not inconsistent with the Indenture (Section 2.03).
Debt Securities may be issued under the Indenture as Original Issue Discount
Securities to be offered and sold at a substantial discount from the principal
amount thereof. If any Debt Securities are Original Issue Discount Securities,
special federal income tax, accounting and other considerations applicable
thereto will be described in the Prospectus Supplement relating thereto.
"Original Issue Discount Security" means any security which provides for an
amount
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less than the principal amount thereof to be due and payable upon the
declaration of acceleration of the maturity thereof upon the occurrence of an
Event of Default and the continuation thereof. (Section 1.01)
GLOBAL SECURITIES
The Debt Securities of each series may be issued in the form of one or more
fully registered global Debt Securities (each a "Registered Global Security")
registered in the name of The Depository Trust Company (the "Depositary") or a
nominee thereof, unless otherwise established for the Debt Securities of such
series. Except as described in a Prospectus Supplement hereto, Debt Securities
in definitive form will not be issued. Unless and until a Registered Global
Security is exchanged in whole or in part for Debt Securities in definitive
form, it may not be registered for transfer or exchange except as a whole by the
Depositary for such Registered Global Security to a nominee of such Depositary
or by such Depositary or any such nominee to a successor Depositary or a nominee
of such successor Depositary (Section 2.06).
Upon the issuance of any Registered Global Security, and the deposit of such
Registered Global Security with or on behalf of the Depositary, the Depositary
will credit, on its book-entry registration and transfer system, the respective
principal amounts of the Debt Securities represented by such Registered Global
Security to the accounts of institutions ("participants") entitled thereto that
have accounts with the Depositary designated by the underwriters or their agents
engaging in any distribution of the Debt Securities. Ownership of beneficial
interests in a Registered Global Security will be limited to participants or
Persons that may hold interests through participants. Ownership of beneficial
interests by participants in a Registered Global Security will be shown on, and
the transfer of such beneficial interests will be effected only through, records
maintained by the Depositary or by its nominee. Ownership of beneficial
interests in a Registered Global Security by Persons that hold through
participants will be shown on, and the transfer of such beneficial interests
within such participants will be effected only through, records maintained by
such participants. 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 own, transfer or pledge beneficial interests in Registered Global
Securities.
As long as the Depositary, or its nominee, is the registered owner of a
Registered 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 Registered Global Security for all purposes under the Indenture. Except
as specified below, owners of beneficial interests in a Registered Global
Security will not be entitled to have Debt Securities represented by such
Registered Global Security registered in their names, will not receive or be
entitled to receive physical delivery of Debt Securities in certificated form
and will not be considered the Holders thereof for any purposes under the
Indenture (Section 2.06). Accordingly, each Person owning a beneficial interest
in a Registered Global Security must rely on the procedures of the Depositary
and, if such Person is not a participant, on the procedures of the participant
through which such person owns its interest, to exercise any rights of a holder
of Debt Securities under the Indenture. The Depositary may grant proxies and
otherwise authorize participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action which a holder
of Debt Securities is entitled to give or take under the Indenture. The Company
understands that, under existing industry practices, if the Company requests any
action of holders of Debt Securities or any owner of a beneficial interest in a
Registered Global Security desires to give any notice or take any action a
holder of Debt Securities is entitled to give or take under the Indenture, the
Depositary would authorize the participants holding the relevant beneficial
interests to give such notice or take such action, and such participants would
authorize the beneficial owners owning through such participants to give such
notice or take such action or would otherwise act upon the instructions of the
beneficial owners owning through them.
The Depositary or a nominee thereof, as holder of record of a Registered
Global Security, will be entitled to receive payments of principal and interest
for payment to beneficial owners in accordance with customary procedures
established from time to time by the Depositary. On the date hereof, the agent
for the payment, transfer and exchange of the Securities is the Trustee
therefor, acting through its Corporate Trust Office located in the Borough of
Manhattan, The City of New York.
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The Company expects that the Depositary, upon receipt of any payment of
principal or interest in respect of a Registered Global Security, will
immediately credit participants' accounts with payments in amounts proportionate
to their respective beneficial interests in the principal amount of such
Registered Global Security as shown on the records of the Depositary. The
Company also expects that payments by participants to owners of beneficial
interests in a Registered Global Security held through such participants will be
governed by standing instructions and customary practices, and will be the
responsibility of such participants. None of the Company, the Trustee or any
agent of the Company or the Trustee shall have any responsibility or liability
for any aspect of the records relating to or payments made on account of
beneficial ownership interests in a Registered Global Security, or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests (Section 2.13).
If the Depositary is at any time unwilling or unable to continue as Depositary
or ceases to be a clearing agency registered or in good standing under the
Exchange Act, and a successor depositary registered as a clearing agency under
the Exchange Act is not appointed by the Company within 90 days, if the Company
determines that Debt Securities shall no longer be maintained as Registered
Global Securities, or, if at any time an Event of Default shall have occurred
and be continuing under the Indenture, the Company will issue Debt Securities in
definitive certificated form in exchange for the Registered Global Securities
(Section 2.06).
In the event that the book-entry system is discontinued, the following
provisions shall apply. The Trustee or any successor registrar under the
Indenture shall keep a register for the Debt Securities in definitive
certificated form at its Corporate Trust Office. Subject to the further
conditions contained in the Indenture, Debt Securities in definitive
certificated form may be transferred or exchanged for one or more Debt
Securities in different authorized denominations upon surrender thereof at the
Corporate Trust Office of the Trustee or any successor Registrar under the
Indenture by the registered Holders or their duly authorized attorneys. Upon
surrender of any Debt Security to be transferred or exchanged, the Trustee or
any successor registrar under the Indenture shall record the transfer or
exchange in the Security Register and the Company shall issue, and the Trustee
shall authenticate and deliver, new Debt Securities in definitive certificated
form appropriately registered and in appropriate authorized denominations
(Section 2.06). The Trustee shall be entitled to treat the registered Holders
of the Debt Securities in definitive certificated form, as their names appear in
the Security Register as of the appropriate date, as the owners of such Debt
Securities for all purposes under the Indenture (Section 2.13).
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company shall not consolidate or merge with any other Person, sell,
transfer, lease or otherwise dispose of all or substantially all of its
properties and assets as an entirety in one transaction or series of
transactions to any Person, or allow another Person to sell, transfer, lease or
otherwise dispose of substantially all of its assets to the Company unless (a)
either (i) the Company shall be the surviving Person or (ii) such Person shall
be a corporation organized and validly existing under the laws of the United
States of America or any State thereof or the District of Columbia and shall
expressly assume by a supplemental indenture all of the Company's obligations
under the Debt Securities and under the Indenture; (b) immediately before and
after such transaction or each element of such series, no Default or Event of
Default shall have occurred and be continuing; and (c) certain other conditions
are met. Upon any such consolidation, merger, sale, transfer, lease or other
disposition, the successor corporation formed by such consolidation, or into
which the Company is merged, or to which such sale, transfer, lease or other
disposition is made, shall succeed to, and be substituted for, and may exercise
every right and power of the Company under the Indentures and under the Debt
Securities (Section 5.02).
EVENTS OF DEFAULT
The following are Events of Default under the Indenture with respect to Debt
Securities of any series: (a) failure to pay any installment of interest on any
Debt Security of such series when due and the continuance of such failure for 30
days; (b) failure to pay the principal of any Debt Security of such series when
due; (c) failure to deposit any sinking fund payment, when due, in respect of
any Debt Security of such series; (d) failure for 60 days after notice to the
Company by the Trustee, or by the Holders of 25% in aggregate principal amount
of the Debt Securities of such series then outstanding, to perform or observe
any other covenant, condition or agreement in the Debt Securities of such series
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or 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); (e) certain
events of bankruptcy, insolvency or reorganization of the Company; or (f) any
other Event of Default established for the Debt Securities of such series
(Section 6.01).
The Indenture provides that, if an Event of Default with respect to the Debt
Securities of any series then outstanding thereunder occurs and is continuing,
then, either the Trustee for or the Holders of not less than 25% in aggregate
principal amount of the Debt Securities of any such affected series then
outstanding (each such series treated as a separate class) by notice in writing
to the Company (and to the Trustee if given by the Holders), may declare the
entire principal (or, if the Debt Securities of any such series are Original
Issue Discount Securities, such portion of the principal amount as may be
established for such series) of all Debt Securities of such affected series, and
the interest accrued thereon, if any, to be due and payable immediately, and
upon any such declaration the same shall become immediately due and payable
(Section 6.02). However, at any time after a declaration of acceleration with
respect to Debt Securities of any series has been made, but before a judgment or
decree based on such acceleration has been obtained, the Holders of a majority
in principal amount of the Debt Securities of that series may, under certain
circumstances, rescind and annul such declaration (Section 6.02).
The Company is required to furnish to the Trustee annually an Officer's
Certificate as to the Company's compliance with all conditions and covenants
under the Indenture. The Company must notify the Trustee within five days of
any Default or Event of Default (Section 4.06).
The Indenture provides that the Trustee thereunder will, within 60 days after
the occurrence of a Default with respect to the Debt Securities of any series,
give to the Holders of the Debt Securities notice of all Defaults with respect
to such series known to such Trustee, provided that, except in the case of a
Default in payment on the Debt Securities or sinking fund installment with
respect thereto, the Trustee may withhold such notice if and so long as a
Responsible Officer in good faith determines that withholding such notice is in
the interest of the Holders of the Debt Securities (Section 7.05). "Default"
means any event which is, or after notice or passage of time or both would be,
an Event of Default (Section 1.01).
The Indenture provides that the holders of a majority in aggregate principal
amount of the then outstanding Debt Securities thereunder, by notice to the
Trustee therefor, may direct the time, method and place of conducting any
proceeding for any remedy available to such Trustee, or exercising any trust or
power conferred on such Trustee (Section 6.05).
Subject to the further conditions contained in the Indenture, the holders of a
majority in aggregate principal amount outstanding of the Debt Securities of any
series may waive, on behalf of the holders of all Debt Securities of such
series, any past Default or Event of Default and its consequences except a
Default or Event of Default (a) in the payment of the principal of or interest,
if any, on any Debt Security of such series or (b) in respect of a covenant or
provision of such Indenture which cannot under the terms of the Indenture be
amended or modified without the consent of the holder of each outstanding Debt
Security adversely affected thereby (Section 6.04).
The applicable Prospectus Supplement will describe any provisions for Events
of Default applicable to the Debt Securities of any series in addition to, in
substitution for, or in modification of, the provisions described above.
CERTAIN COVENANTS OF THE COMPANY
DEFINITIONS
"Attributable Debt" is defined to mean, as to any particular lease, the total
net amount of rent (discounted at a rate per annum equivalent to the interest
rate inherent in such lease, as determined in good faith by the Company,
compounded semiannually) required to be paid during the remaining term of such
lease, including any period for which such lease has been extended or may, at
the option of the lessor, be extended. (Section 1.01)
7
"Consolidated Net Tangible Assets" is defined as the total amount of assets of
the Company and its Restricted Subsidiaries (less applicable reserves and other
properly deductible items) after deducting (i) all current liabilities
(excluding any liabilities constituting Funded Debt by reason of being renewable
or extendible), (ii) all goodwill, trade names, trademarks, patents, unamortized
debt discount and expense and other like intangibles, (iii) investments in and
advances to Subsidiaries which are not Restricted Subsidiaries, and (iv)
minority interests in the equity of Restricted Subsidiaries. (Section 1.01)
"Funded Debt" is defined to mean all indebtedness for borrowed money maturing
more than 12 months after the time of computation thereof, guarantees of such
indebtedness of others (except guarantees of collection arising in the ordinary
course of business), and all obligations in respect of lease rentals which,
under generally accepted accounting principles, are shown on a balance sheet as
a non-current liability. (Section 1.01)
"Principal Property" is defined to mean any building, structure or other
facility (together with the land on which it is erected and fixtures comprising
a part thereof) now owned or hereafter acquired by the Company or any Restricted
Subsidiary and used primarily for manufacturing, processing or warehousing and
located in the United States (excluding its territories and possessions, but
including Puerto Rico), the gross book value (without deduction of any
depreciation reserves) of which is in excess of 2.0% of Consolidated Net
Tangible Assets, other than any such building, structure or other facility or
portion thereof which, in the opinion of the Board of Directors of the Company,
is not of material importance to the total business conducted by the Company and
its Restricted Subsidiaries as an entirety. (Section 1.01)
"Restricted Subsidiary" is defined to mean any Subsidiary substantially all of
the property and operations of which are located in the United States (excluding
its territories and possessions, but including Puerto Rico), and which owns or
leases a Principal Property, except a Subsidiary which is primarily engaged in
the business of a finance company. (Section 1.01)
"Subsidiary" is defined to mean a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and by one or more other
Subsidiaries. (Section 1.01)
Restrictions on Secured Debt
If the Company or any Restricted Subsidiary shall incur, issue, assume or
guarantee any Debt secured by a Mortgage on any Principal Property or on any
shares of stock or Debt of any Restricted Subsidiary, the Company will secure,
or cause such Restricted Subsidiary to secure, the Debt Securities (and, if the
Company so elects, any other Debt of the Company or such Restricted Subsidiary
which is not subordinate to the Debt Securities) equally and ratably with (or
prior to) such secured Debt, unless after giving effect thereto the aggregate
amount of all such Debt so secured, together with all Attributable Debt of the
Company and its Restricted Subsidiaries in respect of certain sale and leaseback
transactions involving Principal Properties, would not exceed 10% of
Consolidated Net Tangible Assets. This restriction will not apply to, and there
shall be excluded in computing secured Debt for the purpose of such restriction,
Debt secured by (a) Mortgages existing on properties on the date of the
Indenture, (b) Mortgages on properties, shares of stock or Debt existing at the
time of acquisition thereof (including acquisition through merger or
consolidation), purchase money Mortgages and construction Mortgages, (c)
Mortgages on property of, or on any shares of stock or Debt of, any corporation
existing at the time such corporation becomes a Restricted Subsidiary, (d)
Mortgages in favor of Federal and State governmental bodies to secure progress,
advance or other payments pursuant to any contract or provision of any statute,
(e) Mortgages in favor of the Company or a Restricted Subsidiary, (f) Mortgages
in connection with the issuance of certain tax-exempt industrial development
bonds, (g) Mortgages under workers' compensation laws, unemployment insurance
laws or similar legislation, or certain deposits including those to secure
statutory obligations or certain bonds (or pledges or deposits for similar
purposes in the ordinary course of business), or liens imposed by law and
certain other liens or other encumbrances, and (h) subject to certain
limitations, any extension, renewal or replacement of any Mortgage referred to
in the foregoing clauses (a) through (g), inclusive. (Section 4.04)
8
Restrictions on Sale and Leasebacks
Neither the Company nor any Restricted Subsidiary may enter into any sale and
leaseback transaction involving the taking back of a lease, for a period of
three or more years, of any Principal Property, the acquisition, completion of
construction or commencement of full operation of which has occurred more than
120 days prior thereto, unless (a) the commitment to enter into such sale and
leaseback transaction was obtained during such 120 day period, (b) the Company
or such Restricted Subsidiary could create Debt secured by a Mortgage on such
Principal Property as described under "Restrictions on Secured Debt" above in an
amount equal to the Attributable Debt with respect to such sale and leaseback
transaction without equally and ratably securing the Debt Securities, (c) the
Company, within 120 days after the sale or transfer shall have been made,
applies to the retirement of its Funded Debt an amount (the "Designated
Amount"), subject to credits for certain voluntary retirements of Funded Debt,
equal to the greater of (i) the net proceeds of the sale of such Principal
Property and (ii) the fair market value of such Principal Property, or (d) the
Company or any Restricted Subsidiary, within a period commencing 180 days prior
to and ending 180 days after the sale or transfer, has expended or reasonably
expects to expend within such period any monies to acquire or construct any
Principal Property or Properties in which event the Company or such Restricted
Subsidiary may enter into such sale and leaseback transaction, but (unless
certain other conditions are met) only to the extent that the Designated Amount
in respect thereof is less than such monies expended or to be expended. This
restriction will not apply to any sale and leaseback transactions between the
Company and a Restricted Subsidiary or between a Restricted Subsidiary and
another Restricted Subsidiary. (Section 4.05)
MODIFICATION AND WAIVER
The Indenture contains provisions permitting the Company and the Trustee to
enter into one or more supplemental indentures without the consent of the
holders of Debt Securities in order (a) to evidence the succession of another
corporation to the Company and the assumption of the covenants of the Company by
such successor, (b) to provide for a successor Trustee with respect to the Debt
Securities of all or any series, (c) to establish the forms and terms of the
Debt Securities of any series, (d) to provide for uncertificated or unregistered
Debt Securities, or (e) to cure any ambiguity or correct any mistake or to make
any change that does not materially adversely affect the legal rights of any
holder of the Debt Securities under such Indenture (Section 9.01).
The Indenture also contains provisions permitting the Company and the Trustee,
with the consent of the holders of a majority in aggregate principal amount of
the then outstanding Debt Securities of any series, to execute supplemental
indentures adding any provisions to or changing or eliminating any of the
provisions of the Indenture or any supplemental indenture or modifying the
rights of the holders of such Debt Securities, except that no such supplemental
indenture, or any amendment or waiver, may, without the consent of the holder of
each Debt Security, (a) extend the stated maturity of the principal of, or any
sinking fund obligation or any installment of interest on, such holder's Debt
Security, or reduce the principal amount thereof or the rate of interest thereon
(including any amount in respect of original issue discount), or any premium
payable with respect thereto, or adversely affect the rights of such Holder
under any mandatory redemption or repurchase provision or any right of
redemption or repurchase at the option of the Company or such Holder, or reduce
the amount of the principal of an Original Issue Discount Security that would be
due and payable upon an acceleration of the maturity thereof or the amount
thereof provable in bankruptcy, or change any place of payment where, or the
currency in which, any Debt Security or any premium or the interest thereon is
payable, or impair the right to institute suit for the enforcement of any such
payment on or after the due date therefor, or change the manner of determining
any of the foregoing; (b) reduce the percentage in principal amount of
outstanding Debt Securities of the relevant series, the consent of whose Holders
is required for any such supplemental indenture, for any waiver of compliance
with certain provisions of this Indenture or certain Defaults and their
consequences provided for in this Indenture; (c) waive a Default in the payment
of principal of or interest on any Debt Security of such Holder; (d) change any
obligation of the Company to maintain an office or agency in the places and for
the purposes in the Indenture provided; or (e) modify any of the foregoing
provisions, except to increase any such percentage or to provide that certain
other provisions of the Indenture cannot be modified or waived without the
consent of the Holder of each outstanding Debt Security affected thereby
(Section 9.02). After a supplemental indenture, amendment or waiver becomes
effective, the Company shall mail a notice to the holders of the Debt Securities
affected thereby briefly describing the supplemental indenture, amendment or
waiver (Section 9.02).
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DEFEASANCE AND COVENANT DEFEASANCE
Unless the terms of the Debt Securities of any series provide otherwise, the
Company may elect either (a) to defease and be discharged from any and all
obligations with respect to (i) Debt Securities of any series payable within one
year or (ii) other Debt Securities of any series upon certain conditions
described below (except as otherwise provided in the Indenture) ("defeasance")
or (b) to be released from its obligations with respect to certain covenants
applicable to the Debt Securities of any series ("covenant defeasance"), upon
(or, with respect to defeasance of Debt Securities payable later than one year
from the date of defeasance, on the 91st day after) the deposit with the
Trustee, in trust for such purpose, of money and/or U.S. Government Obligations
which through the payment of principal and interest in accordance with their
terms will provide money in an amount sufficient without reinvestment to pay the
principal of and interest on the Debt Securities and the satisfaction of certain
other conditions set forth in such Indenture. As a condition to defeasance of
any Debt Securities of any series payable later than one year from the time of
defeasance, the Company must deliver to the Trustee an Opinion of Counsel or a
ruling of the Internal Revenue Service to the effect that holders of the Debt
Securities will not recognize income, gain or loss for Federal income tax
purposes as a result of such defeasance and will be subject to Federal income
tax on the same amount and in the same manner and at the same times as would
have been the case if such defeasance or covenant defeasance had not occurred
(Article 8).
The Company may exercise either defeasance option with respect to the Debt
Securities of any series notwithstanding its prior exercise of its covenant
defeasance option with respect thereto. If the Company exercises its defeasance
option, payment of the Debt Securities of any series may not be accelerated
because of a Default or an Event of Default. If the Company exercises its
covenant defeasance option, payment of the Debt Securities of any series may not
be accelerated by reason of an Event of Default with respect to the covenants to
which such covenant defeasance is applicable. If such acceleration were to
occur by reason of another Event of Default, the realizable value at the
acceleration date of the money and U.S. Government Obligations in the defeasance
trust could be less than the principal and interest then due on the Debt
Securities, in that the required deposit in the defeasance trust is based upon
scheduled cash flow rather than market value, which will vary depending upon
interest rates and other factors. The Company will, however, remain liable for
such payments at the time of the acceleration.
GOVERNING LAW
The Indenture and the Debt Securities are governed by and construed in
accordance with the laws of the State of New York (Section 10.07).
THE TRUSTEE
The Company maintains a banking relationship with the Trustee.
DESCRIPTION OF WARRANTS
The Company may issue Warrants for the purchase of Debt Securities. Warrants
may be issued independently or together with any Debt Securities offered by any
Prospectus Supplement and, if issued together with any Debt Securities, may be
attached to or separate from such Debt Securities.
The following description sets forth certain general terms and provisions of
the Warrants to which any Prospectus Supplement may relate. The particular
terms of the Warrants offered by any Prospectus Supplement and the extent, if
any, to which such general terms may apply to the Warrants so offered will be
described in the Prospectus Supplement relating to such Warrants.
The Offered Warrants (as defined below) are to be issued under Warrant
Agreements (each a "Warrant Agreement") to be entered into between the Company
and a bank or trust company, as Warrant Agent (the "Warrant Agent"), all as set
forth in the Prospectus Supplement relating to the particular issue of Warrants
and shall be
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evidenced by Warrant Certificates (each a "Warrant Certificate"). A copy of the
forms of Warrant Agreement and Warrant Certificate are on file with the
Commission and are incorporated herein by reference as exhibits to the
Registration Statement of which this Prospectus is a part. The following summary
of certain provisions of the forms of Warrant Agreement and Warrant Certificate
does not purport to be complete and is qualified in its entirety by reference to
the Warrant Agreement and the Warrant Certificate.
GENERAL
The Prospectus Supplement or Prospectus Supplements relating to any Warrants
will describe the terms of the Warrants offered thereby (the "Offered
Warrants"), the Warrant Agreement relating to such Warrants and the Warrant
Certificates representing such Warrants, including the following: (a) the
offering price; (b) the currency or currencies for which the Offered Warrants
may be purchased; (c) the designation, aggregate principal amount, currency or
currencies and terms of the Debt Securities purchasable upon exercise of the
Offered Warrants and the procedures and conditions relating to the exercise of
such Offered Warrants; (d) if applicable, the designation and terms of the Debt
Securities with which the Offered Warrants are issued and the number of Offered
Warrants issued with each such Debt Security; (e) if applicable, the date on and
after which the Offered Warrants and such related Debt Securities will be
separately transferable; (f) the principal amount of Debt Securities purchasable
upon exercise of one Offered Warrant and the price and currency at which such
principal amount of Debt Securities may be purchased upon such exercise; (g) the
date on which the right to exercise the Offered Warrants shall commence and the
date (the "Expiration Date") on which such right shall expire; (h) federal
income tax consequences; and (i) any additional terms of the Offered Warrants.
Warrant Certificates will be issued only in fully registered form and may be
exchanged for new Warrant Certificates of different denominations, may be
presented for registration of transfer, and may be exercised at the corporate
trust office of the Warrant Agent or any other office indicated in the
Prospectus Supplement describing the terms of the Offered Warrants. Prior to
the exercise of their Offered Warrants, holders of Offered Warrants will not
have any of the rights of holders of the Debt Securities purchasable upon such
exercise, including the right to receive payments of principal or interest on
the Debt Securities purchasable upon such exercise or to enforce covenants in
the Indenture, except as otherwise provided in the Indenture or pursuant
thereto.
EXERCISE OF WARRANTS
Each Offered Warrant will entitle the holder to purchase such principal amount
of Debt Securities at such exercise price as shall in each case be set forth in,
or calculable from, the Prospectus Supplement relating to the Offered Warrants.
Offered Warrants may be exercised at any time up to 5:00 P.M., New York time, on
the Expiration Date and in the manner set forth in the Prospectus Supplement
relating to such Warrants. After the close of business on the Expiration Date
(or such later date to which such Expiration Date may be extended by the
Company), unexercised Offered Warrants will become void.
Offered Warrants may be exercised by delivery to the Warrant Agent of payment
as provided in the Prospectus Supplement describing the terms of the Offered
Warrants of the amount required to purchase the Debt Securities purchasable upon
such exercise together with certain information set forth on the reverse side of
the Warrant Certificate. Offered Warrants will be deemed to have been exercised
upon receipt by the Warrant Agent of the exercise price, subject to the receipt
within five business days of the Warrant Certificate evidencing such Offered
Warrants. Upon receipt of such payment and the Warrant Certificate properly
completed and duly executed at the corporate trust office of the Warrant Agent
or any other office indicated in the Prospectus Supplement describing the terms
of the Offered Warrants, the Company will, as soon as practicable, issue and
deliver the Debt Securities purchasable upon such exercise. If fewer than all
of the Offered Warrants represented by such Warrant Certificate are exercised, a
new Warrant Certificate will be issued for the remaining amount of Warrants.
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PLAN OF DISTRIBUTION
GENERAL
The Company may sell the Securities through underwriters or dealers, directly
to purchasers or through agents or through a combination of any such methods of
sale. If an underwriter or underwriters are utilized in the sale, the Company
will execute an underwriting agreement with such underwriters and the terms of
the transaction will be set forth in the Prospectus Supplement, which will be
used by the underwriters to make resales of the Securities in respect of which
this Prospectus is delivered to the public.
In connection with the sale of the Securities, underwriters may receive
compensation from the Company or from purchasers of the Securities for whom they
may act as agents in the form of discounts, concessions or commissions. Any
underwriting compensation paid by the Company to underwriters or agents in
connection with the offering of the Securities, and any discounts, concessions
or commissions allowed by underwriters to participating dealers, and the names
of such underwriters, dealers and agents, will be set forth in the applicable
Prospectus Supplement to the extent required. Underwriters, dealers and agents
that participate in the distribution of Securities may be deemed to be
underwriters and any discounts or commissions received by them and any profit on
the resale of Securities by them may be deemed to be underwriting discounts and
commissions under the Securities Act.
During and after the offering, underwriters may purchase and sell the
Securities in the open market. These transactions may include overallotment and
stabilizing transactions and purchases to cover short positions created by
underwriters in connection with the offering. Underwriters may also impose a
penalty bid, whereby selling concessions allowed to broker-dealers in respect of
the Securities sold in the offering for their account may be reclaimed by
underwriters if such Securities are repurchased by underwriters in stabilizing
or covering transactions. These activities may stabilize, maintain or otherwise
affect the market price of the Securities which may be higher than the price
that might otherwise prevail in the open market; and these activities, if
commenced, may be discontinued at any time. These transactions may be effected
in the over-the-counter market or otherwise.
Under agreements which may be entered into by the Company, underwriters,
dealers and agents who participate in the distribution of the Securities may be
entitled to indemnification by the Company against certain liabilities,
including liabilities under the Securities Act.
DELAYED DELIVERY ARRANGEMENTS
If so indicated in the Prospectus Supplement, the Company will authorize
underwriters or other persons acting as the Company's agents to solicit offers
by certain institutions to purchase the Securities from the Company pursuant to
contracts providing for payment and delivery on a future date. Institutions
with which such contracts may be made include commercial and savings banks,
insurance companies, pension funds, investment companies, educational and
charitable institutions and others, but in all cases such institutions must be
approved by the Company. The obligations of any purchaser under any such
contract will not be subject to any conditions except that (i) the purchase of
the Securities shall not at the time of delivery be prohibited under the laws of
the jurisdiction to which such purchaser is subject, and (ii) if the Securities
are also being sold to underwriters, the Company shall have sold to such
underwriters the Securities not sold for delayed delivery. The underwriters and
such other persons will not have any responsibility in respect of the validity
or performance of such contracts.
12
VALIDITY OF SECURITIES
Unless otherwise indicated in the Prospectus Supplement with respect to any
Securities, the validity of the Securities will be passed upon for the Company
by John W. Galiardo, Vice Chairman and General Counsel of the Company, and for
the underwriters by Sullivan & Cromwell, 125 Broad Street, New York, New York
10004. As of March 1, 1997, Mr. Galiardo owned 89,105 shares of the Company's
common stock, had options to acquire 841,637 shares, was entitled to receive
18,504 shares under the Company's Stock Award Plan and had rights to 400 shares
under the Company's 1996 Directors' Deferral Plan. In addition, Mr. Galiardo
had a vested interest, as of January 31, 1997, under the Company's Savings
Incentive Plan in 8,785 shares of the Company's common stock and in 423 shares
of the Company's Series B ESOP Convertible Preferred Stock.
EXPERTS
The consolidated financial statements of the Company, incorporated by
reference into the Company's Annual Report on Form 10-K for the year ended
September 30, 1996 (the "1996 10-K"), and the related schedule thereto included
in the 1996 10-K, have been audited by Ernst & Young LLP, independent auditors,
as set forth in their report thereon included therein and incorporated herein by
reference. Such consolidated financial statements and schedule are incorporated
herein by reference in reliance upon such report given upon the authority of
such firm as experts in accounting and auditing.
13
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. Other Expenses of Issuance and Distribution.
Securities and Exchange Commission registration fee $ 90,909
Legal fees and expenses 100,000
Blue Sky fees and expenses 6,000
Accounting fees and expenses 110,000
Printing and engraving fees 35,000
Trustee's fees and expenses 30,000
Rating agency fees 130,000
Miscellaneous 18,091
--------
Total $520,000
========
All of the above items except the registration fees are estimated.
ITEM 15. Indemnification of Directors and Officers.
Article XI of the by-laws of the Company provides as follows:
"The Company shall indemnify to the full extent authorized or permitted by the
New Jersey Business Corporation Act, any corporate agent (as defined in said
Act), or his legal representative, made, or threatened to be made, a party to
any action, suit or proceeding (whether civil, criminal, administrative or
investigative) by reason of the fact that he is or was a corporate agent of this
Company."
The New Jersey Business Corporation Act permits or requires indemnification of
officers and directors in the event that certain statutory standards of conduct
are met.
The Company maintains policies of insurance under which the respective
directors and officers (as defined therein) of the Company are insured subject
to specified exclusions and deductible and maximum amounts against loss arising
from any civil claim or claims which may be made against any director or officer
(as so defined) of the Company by reason of any breach of duty, neglect, error,
misstatement, misleading statement, omission or act done or alleged to have been
done while acting in their respective capacities.
ITEM 16. Exhibits.
1 -- Form of Underwriting Agreement.
4(a) -- Form of Indenture, dated as of March 1, 1997, between the Company
and The Chase Manhattan Bank, Trustee.
4(b) -- Forms of Warrant Agreement (incorporated by reference to Exhibit
4(b) to the Company's Form S-3 Registration Statement No. 33-47957).
4(c) -- Forms of Warrant Certificate (incorporated by reference to Exhibit
4(c) to the Company's Form S-3 Registration Statement No. 33-47957).
5 -- Opinion of John W. Galiardo, Vice Chairman and General Counsel of
the Company.
12 -- Calculation of Ratio of Earnings to Fixed Charges.
23(a) -- Consent of Independent Auditors, Ernst & Young LLP.
23(b) -- Consent of John W. Galiardo (included in his opinion filed herewith
as Exhibit 5).
24 -- Powers of Attorney.
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25 -- Form T-1, Statement of Eligibility of The Chase Manhattan Bank, as
Trustee.
ITEM 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales of the registered
securities 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, unless the information required to be included in such post-
effective amendment is contained in a periodic report filed by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
and incorporated herein by reference;
(ii) to reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the Registration Statement,
unless the information required to be included in such post-effective amendment
is contained in a periodic report filed by the registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 and incorporated herein
by reference. Notwithstanding the foregoing, any increase or decrease in the
volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20 percent
change in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in this Registration Statement;
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
(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; and
(4) that, for purposes of determining any liability under the Securities Act
of 1933, each filing of the registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by reference
in this Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described in Item 15 above, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of
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appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Franklin Lakes, New Jersey on the 18th day of March, 1997.
BECTON, DICKINSON AND COMPANY
(Registrant)
By /s/ Bridget M. Healy
------------------------------------------
Bridget M. Healy
Vice President and Secretary
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed below on the 18th day of March, 1997 by or on behalf
of the following persons in the capacities indicated.
Name Title
---- -----
* Chairman of the Board, President,
- ------------------------------ Chief Executive Officer and Director
(Clateo Castellini) (Principal Executive Officer)
* Senior Vice President - Finance and
- ------------------------------ Chief Financial Officer (Principal
(Edward J. Ludwig) Financial and Accounting Officer)
* Director
- ------------------------------
(Harry N. Beaty, M.D.)
* Director
- ------------------------------
(Henry P. Becton, Jr.)
* Director
- ------------------------------
(Albert J. Costello)
* Director
- ------------------------------
(Gerald M. Edelman, M.D.)
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* Director
- ------------------------------
(John W. Galiardo)
* Director
- ------------------------------
(Richard W. Hanselman)
* Director
- ------------------------------
(Frank A. Olson)
* Director
- ------------------------------
(James E. Perrella)
* Director
- ------------------------------
(Gloria M. Shatto)
* Director
- ------------------------------
(Raymond S. Troubh)
* Bridget M. Healy, by signing her name below, does sign this document on behalf
of the person indicated above pursuant to a power of attorney duly executed by
such person and filed with the Securities and Exchange Commission.
/s/ Bridget M. Healy
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Bridget M. Healy,
Attorney-in-fact
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