AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 6, 2002
REGISTRATION NO. 333-71028
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CARLISLE COMPANIES INCORPORATED
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 31-1168055
(State or other jurisdiction of incorporation or (I.R.S. Employer Identification No.)
organization)
13925 BALLANTYNE CORPORATE PLACE
SUITE 400
CHARLOTTE, NC 28277
704-501-1100
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
STEVEN J. FORD, ESQ.
VICE PRESIDENT, SECRETARY AND GENERAL COUNSEL
CARLISLE COMPANIES INCORPORATED
250 SOUTH CLINTON STREET
SUITE 201
SYRACUSE, NY 13202
315/474-2500
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
COPIES TO:
LISA L. JACOBS, ESQ.
Shearman & Sterling
599 Lexington Avenue
New York, NY 10022
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
FROM TIME TO TIME AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE.
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If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities being 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 of 1933, check the following
box and list the 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 of 1933, check the following box and list the
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
under the Securities Act of 1933, please check the following box. / /
Pursuant to Rule 429 of the General Rules and Regulations under the
Securities Act of 1933, as amended, the Prospectus which is a part of this
Registration Statement is a combined Prospectus relating also to Registration
Statement No. 333-16785 and constituting Post-Effective Amendment No. 1 to
Registration Statement No. 333-16785.
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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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED MARCH 6, 2002
PROSPECTUS
[LOGO]
CARLISLE COMPANIES INCORPORATED
$400,000,000
DEBT SECURITIES
We will provide specific terms of these securities in supplements to this
prospectus. You should read this prospectus and the prospectus supplements
carefully before you invest.
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NEITHER SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENCE.
The date of this prospectus is , 2002
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports and other information with the
SEC. You may read and copy any document we file at the SEC's public reference
rooms at 450 Fifth Street, N.W., Washington, D.C. 20549 and in New York, New
York and Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference rooms. Our SEC filings are also available to
the public from the SEC's web site at http://www.sec.gov.
Our common stock is listed on the New York Stock Exchange and you can
inspect reports, proxy statements and other information about us at the offices
of the New York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005.
The SEC allows us to "incorporate by reference" the information we file with
them, which means that we can disclose important information to you by referring
you to those documents that are considered part of this prospectus. Later
information that we file with the SEC will automatically update and supersede
this information. We incorporate by reference the documents listed below and any
future filings made with the SEC under Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934 by us (i) after the date of the filing of this
registration statement and prior to its effectiveness and (ii) until our
offering of securities has been completed. This prospectus is part of a
registration statement filed with the SEC.
- Annual Report on Form 10-K for the year ended December 31, 2000;
- Quarterly Reports on Form 10-Q for the quarter ended March 31, 2001,
June 30, 2001 and September 30, 2001; and
- Current Reports on Form 8-K dated August 17, 2001
You may obtain a copy of these filings at no cost, by writing or telephoning
us at the following address:
Carlisle Companies Incorporated
250 South Clinton Street, Suite 201
Syracuse, New York 13202
Attn.: Secretary
CARLISLE COMPANIES INCORPORATED
We manufacture and distribute a wide variety of products across a broad
range of industries, including, among others, roofing, construction, trucking,
automotive, foodservice, industrial equipment, lawn and garden and aircraft
manufacturing. The Company markets its products both as a component supplier to
original equipment manufacturers ("OEMs"), as well as directly to end users.
Sales of the Company's products are reported by the following four industry
segments: Construction Materials, Industrial Components, Automotive Components
and General Industry (All Other).
The terms "we", "our" "us" and "the Company" refer to Carlisle Companies
Incorporated and its wholly-owned subsidiaries and any other divisions or
subsidiaries.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the Company's ratio of earnings to fixed
charges for periods indicated:
YEAR ENDED DECEMBER 31
9 MONTHS ENDED ----------------------------------------------------
9/30/01 2000 1999 1998 1997 1996
-------------- -------- -------- -------- -------- --------
Ratio of Earnings to Fixed Charges........... 1.84 5.27 7.41 5.20 6.07 7.47
==== ==== ==== ==== ==== ====
For purposes of computing the ratio of earnings to fixed charges, earnings
consist of the sum of our pretax income from continuing operations and fixed
charges. Fixed charges consist of interest
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expense, amortization of debt discount, premium and expense, capitalized
interest and a portion of lease payments considered to represent an interest
factor. The earnings to fixed charges calculation reflects the Company's
proportionate share of income, expense and fixed charges attributable to the
Company's investment in majority-owned unconsolidated subsidiaries and joint
ventures.
USE OF PROCEEDS
Except as may be described otherwise in a prospectus supplement, we will use
the net proceeds from the sale of the securities to repay, redeem or repurchase
outstanding indebtedness and for general corporate purposes of the Company,
including working capital, capital expenditures and to finance acquisitions.
Pending such use, we may invest the proceeds in marketable securities.
PROSPECTUS
This prospectus is part of a registration statement that we filed with the
SEC utilizing a "shelf" registration process. Under this shelf process, we may
sell any debt securities, which may be either senior (the "senior securities")
or subordinated (the "subordinated securities"), in one or more offerings up to
a total dollar amount of $400,000,000, or the equivalent thereof if any of the
debt securities are denominated in a currency, currency unit or composite
currency ("currency") other than the U.S. dollar:
The terms of the debt securities will be determined at the time of offering.
We will also refer to the debt securities proposed to be sold under this
prospectus and an accompanying prospectus supplement as the "offered securities"
or the "securities".
PROSPECTUS SUPPLEMENT
This prospectus provides you with a general description of the debt
securities we may offer. Each time we sell securities, we will provide a
prospectus supplement that will contain specific information about the terms of
that offering. The prospectus supplement may also add to, update or change
information contained in this prospectus and, accordingly, to the extent
inconsistent, information in this prospectus is superseded by the information in
the prospectus supplement. You should read both this prospectus and any
prospectus supplement together with the additional information described under
the heading "Where You Can Find More Information".
The prospectus supplement to be attached to the front of this prospectus
will describe: the terms of the securities offered, any initial public offering
price, the price paid to us for the securities, the net proceeds to us and the
other specific terms related to the offering of these securities. For more
detail on the terms of the securities, you should read the exhibits filed with
our registration statement.
DESCRIPTION OF DEBT SECURITIES
We may issue debt securities from time to time in one or more distinct
series. This section summarizes the material terms of the debt securities that
we anticipate will be common to all series. Most of the financial and other
specific terms of any series of debt securities that we offer will be described
in a prospectus supplement to be attached to the front of this prospectus. Since
the terms of specific debt securities may differ from the general information we
have provided below, you should rely on information in the prospectus supplement
that contradicts different information below.
As required by federal law for all bonds and notes of companies that are
publicly offered, the debt securities are governed by a document called an
"indenture". An indenture is a contract between us and a financial institution
acting as trustee on your behalf. The trustee has two main roles. First, the
trustee can enforce your rights against us if we default. There are some
limitations on the extent to which the trustee acts on your behalf, described
later. Second, the trustee performs certain administrative duties for us.
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The securities will be issued under an indenture dated as of January 15,
1997, as it may be supplemented from time to time (the "indenture"), between the
Company and State Street Bank and Trust Corporation (successor-in-interest to
Fleet National Bank). Manufacturers and Traders Trust Company will now be acting
as trustee (the "trustee") under the indenture. The indenture provides that
there may be more than one trustee, each with respect to one or more series of
debt securities. If there is more than one trustee under the indenture, the
powers and trust obligations of each trustee as described in this prospectus
will extend only to the series of debt securities for which it is trustee. The
indenture is subject to and governed by the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act").
Because this section is a summary, it does not describe every aspect of the
debt securities and the indenture. We urge you to read the indenture, because
it, and not this description, defines your rights as a holder of debt
securities. For example, in this section, we use capitalized words to signify
terms that are specifically defined in the indentures. Some of the definitions
are repeated in this prospectus, but for the rest you will need to read the
indenture. We have filed the form of each indenture as an exhibit to a
registration statement that we have filed with the SEC. See "Where You Can Find
More Information" for information on how to obtain a copy of the indenture.
Except if specified otherwise in the prospectus supplement, the debt
securities will not be listed on any securities exchange.
GENERAL
The debt securities will be our unsecured obligations. The senior securities
will rank equally with all our other unsecured and unsubordinated indebtedness.
The subordinated securities will be subordinated in right of payment to the
prior payment in full of our Senior Indebtedness as described under
"--Subordination".
The indenture provides that any debt securities proposed to be sold under
this prospectus and the attached prospectus supplement ("offered debt
securities") as well as other unsecured debt securities issued by us, may be
issued under the indenture in one or more series.
With respect to the offered debt securities and any underlying debt
securities, you should read the prospectus supplement for the following terms:
- The title of the debt securities and whether the debt securities will be
senior securities or subordinated securities.
- The total principal amount of the debt securities and any limit on the
total principal amount of debt securities of the series.
- If not the principal amount of the debt securities, the portion of the
principal amount payable upon acceleration of the maturity of the debt
securities or how this portion will be determined.
- The date or dates, or how the date or dates will be determined or
extended, when the principal of the debt securities will be payable.
- The interest rate or rates, which may be fixed or variable, that the debt
securities will bear, if any, whether interest is payable in cash or
otherwise, or how the rate or rates will be determined, the date or dates
from which any interest will accrue or how the date or dates will be
determined, the interest payment dates, any record dates for these
payments and the basis upon which interest will be calculated if other
than that of a 360-day year of twelve 30-day months.
- Any optional redemption provisions.
- Any sinking fund or other provisions that would obligate us to repurchase
or otherwise redeem the debt securities.
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- The form in which we will issue the debt securities, if other than in
registered book-entry only form represented by global securities; whether
we will have the option of issuing debt securities in "certificated" form;
whether we will have the option of issuing certificated debt securities in
bearer form if we issue the securities outside the United States to
non-U.S. persons; any restrictions on the offer, sale or delivery of
bearer securities and the terms, if any, upon which bearer securities of
the series may be exchanged for registered securities of the series and
vice versa (if permitted by applicable laws and regulations).
- If other than U.S. dollars, the currency or currencies of the debt
securities.
- Whether the amount of payments of principal, premium or interest, if any,
on the debt securities will be determined with reference to an index,
formula or other method (which could be based on one or more currencies,
commodities, equity indices or other indices) and how these amounts will
be determined.
- The place or places, if any, other than or in addition to The City of New
York, of payment, transfer, conversion and/or exchange of the debt
securities.
- If other than denominations of $1,000 or any integral multiple in the case
of registered securities issued in certificated form and $5,000 in the
case of non-registered securities issued in bearer form, the denominations
in which the offered debt securities will be issued.
- The applicability of the provisions of article thirteen of the indenture
described under "defeasance" and any provisions in modification of, in
addition to or in lieu of any of these provisions.
- Any provisions granting special rights to the holders of the debt
securities upon the occurrence of specified events.
- Any changes or additions to the Events of Default or covenants contained
in the applicable indenture.
- Any other terms of the debt securities.
The indenture does not limit the amount of debt securities that may be
issued from time to time. Debt securities issued under the indenture, when a
single trustee is acting for all debt securities issued under the indenture, are
called the "indenture securities". The indenture also provides that there may be
more than one trustee, each with respect to one or more different series of
indenture securities. See below "Resignation of Trustee". At a time when two or
more trustees are acting under the indenture, each with respect to only certain
series, the term "indenture securities" means the one or more series of debt
securities with respect to which each respective trustee is acting. In the event
that there is more than one trustee under the indenture, the powers and trust
obligations of each trustee described in this prospectus will extend only to the
one or more series of indenture securities for which it is trustee. If two or
more trustees are acting under the indenture, then the indenture securities for
which each trustee is acting would be treated as if issued under separate
indentures.
The indenture does not contain any provisions that give you protection in
the event we issue a large amount of debt or we are acquired by another entity.
See "Limitations on Secured Debt" and "Limitations on Sales and Leasebacks." We
refer you to the prospectus supplement for information with respect to any
deletions from, modifications of or additions to our covenants that are
described below, including any addition of a covenant or other provision
providing event risk or similar protection.
We have the ability to issue indenture securities with terms different from
those of indenture securities previously issued and, without the consent of the
holders thereof, to reopen a previous issue of a series of indenture securities
and issue additional indenture securities of that series unless the reopening
was restricted when that series was created.
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ADDITIONAL MECHANICS
We may issue the debt securities in registered form, in which case we may
issue them either in book-entry form only or in "certificated" form. Debt
securities issued in book-entry form will be represented by global securities.
We expect that we will usually issue debt securities in book-entry only form
represented by global securities. We also will have the option of issuing debt
securities in non-registered form as bearer securities if we issue the
securities outside the United States to non-U.S. persons. In that case, the
prospectus supplement will set forth the mechanics for holding the bearer
securities, including the procedures for receiving payments, for exchanging the
bearer securities for registered securities of the same series, and for
receiving notices. The prospectus supplement will also describe the requirements
with respect to our maintenance of offices or agencies outside the United States
and the applicable U.S. tax law requirements.
We may issue some of the debt securities at a substantial discount (bearing
no interest or interest at below market rates) ("discount securities") to their
stated principal amount. In this case, you should read the prospectus supplement
for any United States Federal income tax consequences and other special
considerations applicable to any such debt securities. If any series of debt
securities is sold for, payable in or denominated in one or more currencies
(other than U.S. dollars) the prospectus supplement will describe any
restrictions, elections, terms and other information relating to those series
and currencies, and will contain a discussion of the United States Federal
income tax and other considerations.
COVENANTS APPLICABLE TO SENIOR SECURITIES
LIMITATIONS ON SECURED DEBT. We covenant in the indenture that neither we
nor any of our subsidiaries will pledge or subject to any lien any of our
Principal Property or the Principal Property, shares of stock or debt of any
significant subsidiary, unless the debt securities issued under the indenture
are secured by this pledge or lien equally and ratably with other indebtedness
thereby secured. There are excluded from this covenant:
- liens existing at the time the debt securities were first issued under the
indenture;
- liens on property existing at the time the property became our property;
- liens in our favor or in favor of our subsidiaries;
- liens in favor of the United States of America or any State or department
or agency of the United States;
- liens on any real or personal property existing at the time of acquisition
of this property or created within one year of the acquisition;
- liens to purchase property or to bear the costs of construction or
improvement of such property;
- liens securing industrial revenue, development or similar bonds;
LIMITATIONS ON SALES AND LEASEBACKS. We covenant in the indenture that
neither we nor any of our significant subsidiaries will enter into any sale or
leaseback transaction with respect to any Principal Property (except a lease for
a temporary period, including renewals, not exceeding three years and except
leases between us and certain of our subsidiaries or between those
subsidiaries).
This restriction does not apply if the following conditions are met:
(i) after the transaction, the aggregate amount of all Attributable Debt (as
defined in the indenture) with respect to all transactions of the same type
occurring after the date of the indenture and existing at that time (other than
the sales and leaseback transactions as are in compliance with the provisions
described in clause (ii) of this paragraph) plus all our secured indebtedness
then outstanding incurred after the date of the indenture (which would otherwise
be prohibited by the covenant
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described in "--Limitations on Secured Debt" above) would not exceed 10% of
Consolidated Net Tangible Assets; or
(ii) (a) the gross proceeds of the sales or transfer of the property leased
equals or exceeds the fair market value of that property and (b) within one year
after the sale or transfer, we or any of our subsidiaries: (1) apply all of the
net proceeds to the retirement of our or our subsidiaries' Funded Debt (as
defined in the indenture) (other than at maturity or pursuant to any mandatory
sinking fund payment or mandatory prepayment provision) or (2) applies or
commits to apply all of the net proceeds to the purchase of property, facilities
or equipment (other than property, facilities or equipment involved in such
sale) which will constitute the property.
CERTAIN DEFINITIONS
Below is a summary of certain of the defined terms used in the Indenture.
"Attributable Debt" is defined to mean, as to any particular lease under
which any Person is at the time liable, at any date as of which the amount
thereof is to be determined, the total net amount of rent required to be paid by
such Person under such lease during the remaining primary term thereof,
discounted from the respective due dates thereof to such date at the rate of
interest per annum implicit in the terms of such lease, as determined in good
faith by the Company, compounded annually. The net amount of rent required to be
paid under any such lease for any such period shall be the amount of the rent
payable by the lessee with respect to such period, after excluding amounts
required to be paid on account of maintenance, repairs, insurance, taxes,
assessments, water rates and similar charges. In the case of any lease, which is
terminable by the lessee upon the payment of a penalty, such net amount shall
also include the amount of such penalty, but shall not include any rent required
to be paid under such lease subsequent to the first date upon which it may be so
terminated.
"Consolidated Net Tangible Assets" is defined to mean the aggregate amount
of assets (less applicable reserves and other property deductible items) after
deducting (a) all current liabilities (excluding any thereof constituting Funded
Debt by reason of being renewable or extendable) and (b) all goodwill, trade
names, trademarks, patents, unamortized debt discount and expense, and other
like intangibles, all as set forth on the most recent balance sheet to the
Company and its Subsidiaries and computed in accordance with generally accepted
accounting principles.
"Debt" is defined to mean notes, bonds, debentures or other similar
evidences of indebtedness for money borrowed.
"Funded Debt" is defined to mean all Debt having a maturity of more than 12
months from the date as of which the amount thereof is to be determined or
having a maturity of less than 12 months but by its terms being renewable or
extendable beyond 12 months from such date at the option of the borrower.
"Principal Property" means any real property, manufacturing plant, warehouse
or other physical facility and related fixtures and improvements, located in the
United States of America (excluding the territories and possessions of the
United States of America) and owned by the Company or any Subsidiary, in each
case the gross book value (without deduction of any depreciation reserves) of
which on the date as of which the determination is being made exceeds 2% of
Consolidated Net Tangible Assets, other than any such facility or portion
thereof which the Board of Directors of the Company declares by resolution is
not of material importance to the total business conducted by the Company and
its Subsidiaries as an entirety.
"Senior Indebtedness" is defined to mean all Debt of the Company, including
principal and interest (and premium, if any) (including, without limitation, any
interest that would accrue but for the occurrence of any event specified in
paragraph (6) or (7) of "--Events of Default") on such Debt except (i) existing
Subordinated Securities, (ii) such indebtedness as is by its terms expressly
stated to
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be junior in right of payment to the Subordinated Securities, and (iii) such
indebtedness as is by its terms expressly stated to rank PARI PASSU with the
Subordinated Securities.
SUBORDINATION
The payment of the principal of (and premium, if any) and interest, if any,
on the subordinated securities is expressly subordinated, to the extent provided
in the indenture, in right of payment to the prior payment in full of all
present and future Senior Indebtedness of the Company. The prospectus supplement
may contain specific provisions regarding subordination of the Subordinated
Securities, which may be differ from the provisions described in Article
Fourteen of the indenture and summarized below.
Upon any distribution of our assets upon our dissolution, winding up,
liquidation or reorganization, the holders of Senior Indebtedness will receive
payment in full of principal and interest before payment of the principal of
(and premium, if any) and interest, if any, before the holders of subordinated
securities are entitled to receive any payment or distribution of cash,
securities or other property. In addition, in the event of a dissolution,
liquidation or other similar reorganization, until the Senior Indebtedness is
paid in full, any payment or distribution to which holders of Subordinated
Securities would be entitled but for the subordination provisions of the
indenture will be made to holders of the Senior Indebtedness as their interests
may appear.
If a distribution is made to holders of subordinated securities that, due to
the subordination provisions, should not have been made to them, those holders
of subordinated securities must hold the payment in trust for the holders of
Senior Indebtedness and pay it over to them as their interests may appear.
We will not make any payments with respect to subordinated securities or any
deposit under the provisions described in the section "Defeasance" if:
- any payment of principal, premium (if any) or interest, if any, on any
Senior Indebtedness is not paid when due (after giving effect to any
applicable grace periods) or
- any other default on Senior Indebtedness occurs and the maturity of the
Senior Indebtedness is accelerated in accordance with its terms.
This will not apply, however, if the default has been cured or waived or has
ceased to exist and the acceleration has been rescinded, or the senior debt has
been discharged or paid in full.
In addition, we may make any payment with respect to Subordinated Securities
without regard to the above restrictions, if we and the trustee receive written
notice approving the payment from the representative of the Senior Indebtedness
with respect there has been a failure in the payment or an event of default.
If payment of the subordinated securities is accelerated because of an event
of default, we or the trustee will promptly inform the holders of Senior
Indebtedness or their representative of the acceleration. By reason of the
subordination provisions contained in the indenture, in the event of insolvency,
our creditors who are holders of Senior Indebtedness may recover more, ratably,
than the holders of subordinated securities.
If this prospectus is being delivered in connection with the offering of a
series of subordinated securities, the prospectus supplement, or information
incorporated by reference therein, will determine the approximate amount of
Senior Indebtedness outstanding as of a recent date.
The terms of the subordination provisions described above will not apply to
payments from money or the proceeds of U.S. Government Obligations held in trust
by the trustee for the payment of principal of and interest on the Subordinated
Securities pursuant to the provisions described in the indenture under
"--Satisfaction, Discharge and Defeasance Prior to Maturity or Redemption".
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EVENTS OF DEFAULT
You will have special rights if an Event of Default occurs in respect of the
debt securities of your series and is not cured, as described later in this
subsection.
WHAT IS AN EVENT OF DEFAULT? The term "Event of Default" in respect of the
debt securities of your series means any of the following:
- We do not pay the principal of, or any premium on, a debt security of the
series on its due date.
- We do not pay interest on a debt security of the series within 30 days of
its due date.
- We do not deposit any sinking fund payment in respect of debt securities
of the series on its due date.
- We remain in breach of a covenant in respect of debt securities of the
series for 60 days after we receive a written notice of default stating we
are in breach. The notice must be sent by either the trustee or holders of
25% of the principal amount of debt securities of the series.
- We do not make payments on any other indebtedness for money borrowed in
excess of $20,000,000, such debt is accelerated and we remain in breach
for 15 days after we receive a written notice of default stating we are in
breach. The notice must be sent by either the trustee or holders of 25% of
the principal amount of debt securities of the series.
- We file for bankruptcy or certain other events of bankruptcy, insolvency
or reorganization occur.
- Any other Event of Default in respect of debt securities of the series
described in the prospectus supplement occurs.
An Event of Default for a particular series of debt securities does not
necessarily constitute an Event of Default for any other series of debt
securities issued under an indenture. The trustee may withhold notice to the
holders of debt securities of any default, except in the payment of principal or
interest, if it considers the withholding of notice to be in the best interests
of the holders.
REMEDIES IF AN EVENT OF DEFAULT OCCURS. If an Event of Default has occurred
and has not been cured, the trustee or the holders of 25% in principal amount of
the debt securities of the affected series may declare the entire principal
amount of all the debt securities of that series to be due and immediately
payable. This is called a declaration of acceleration of maturity. A declaration
of acceleration of maturity may be canceled by the holders of at least a
majority in principal amount of the debt securities of the affected series.
Except in cases of default, where the trustee has some special duties, the
trustee is not required to take any action under the applicable indenture at the
request of any holders unless the holders offer the trustee reasonable
protection from expenses and liability (called an "indemnity"). If reasonable
indemnity is provided, the holders of a majority in principal amount of the
outstanding debt securities of the relevant series may direct the time, method
and place of conducting any lawsuit or other formal legal action seeking any
remedy available to the trustee. The trustee may refuse to follow those
directions in certain circumstances. No delay or omission in exercising any
right or remedy will be treated as a waiver of that right, remedy or Event of
Default.
Before you are allowed to bypass your trustee and bring your own lawsuit or
other formal legal action or take other steps to enforce your rights or protect
your interests relating to the debt securities, the following must occur:
- You must give your trustee written notice that an Event of Default has
occurred and remains uncured.
- The holders of 25% in principal amount of all outstanding debt securities
of the relevant series must make a written request that the trustee take
action because of the default and must offer reasonable indemnity to the
trustee against the cost and other liabilities of taking that action.
9
- The trustee must not have taken action for 60 days after receipt of the
above notice and offer of indemnity.
- The holders of a majority in principal amount of the debt securities must
not have given the trustee a direction inconsistent with the above notice.
However, you are entitled at any time to bring a lawsuit for the payment of
money due on your debt securities on or after the due date. Holders of a
majority in principal amount of the debt securities of the affected series may
waive any past defaults other than
- the payment of principal, any premium or interest or
- in respect of a covenant that cannot be modified or amended without the
consent of each holder.
BOOK-ENTRY AND OTHER INDIRECT HOLDERS SHOULD CONSULT THEIR BANKS OR BROKERS
FOR INFORMATION ON HOW TO GIVE NOTICE OR DIRECTION TO OR MAKE A REQUEST OF THE
TRUSTEE AND HOW TO DECLARE OR CANCEL AN ACCELERATION.
Each year, we will furnish to each trustee a written statement of certain of
our officers certifying that to their knowledge we are in compliance with the
applicable indenture and the debt securities, or else specifying any default.
MODIFICATION OR WAIVER
There are three types of changes we can make to the indenture and the debt
securities issued under the indenture.
CHANGES REQUIRING YOUR APPROVAL. First, there are changes that we cannot
make to your debt securities without your specific approval. Following is a list
of those types of changes:
- change the stated maturity of the principal of, or any installment of
principal of or interest on, any debt security;
- reduce the principal amounts due on a debt security, or any premium
thereof;
- reduce the interest rate or change the time of payment of the interest;
- reduce any amount payable on redemption;
- reduce the overdue rate (as defined in the indenture)
- adversely affect any right of repayment at the holder's option;
- change the place (except as otherwise described in the prospectus or
prospectus supplement) or currency of payment on a debt security;
- impair your right to sue for payment;
- reduce the percentage of holders of debt securities whose consent is
needed to modify or amend the applicable indenture;
- reduce the percentage of holders of debt securities whose consent is
needed to waive compliance with certain provisions of the applicable
indenture or to waive certain defaults;
CHANGES NOT REQUIRING APPROVAL. The second type of change does not require
any vote by the holders of the debt securities. This type is limited to
clarifications and certain other changes that would not adversely affect holders
of the outstanding debt securities in any material respect. Nor do we need any
approval to make any change that affects only debt securities to be issued under
the indenture after the change takes effect.
10
CHANGES REQUIRING MAJORITY APPROVAL. Any other change to the indenture and
the debt securities would require the following approval:
- If the change affects only one series of debt securities, it must be
approved by the holders of a majority in principal amount of that series.
- If the change affects more than one series of debt securities issued under
the indenture, it must be approved by the holders of a majority in
principal amount of each of the series affected by the change. In each
case, the required approval must be given by written consent. The holders
of a majority in principal amount of each of the series of debt securities
issued under the indenture, voting separately for this purpose, may waive
our compliance with some of our covenants in that indenture. However, we
cannot obtain a waiver of a payment default or of any of the matters
covered by the bullet points included above under "--Changes Requiring
Your Approval".
Any amendment to the indenture will be made in the form of supplemental
indentures, entered into between us and the trustee.
BOOK-ENTRY AND OTHER INDIRECT HOLDERS SHOULD CONSULT THEIR BANKS OR BROKERS
FOR INFORMATION ON HOW APPROVAL MAY BE GRANTED OR DENIED IF WE SEEK TO CHANGE
THE APPLICABLE INDENTURE OR THE DEBT SECURITIES OR REQUEST A WAIVER.
CONSOLIDATION, MERGER AND SALE OF ASSETS
Under the terms of the indenture, we are generally permitted to consolidate
or merge with another entity. We are also permitted to sell all or substantially
all of our assets to another entity. However, we may not take any of these
actions unless all the following conditions are met:
- Where we merge out of existence or sell our assets, the resulting entity
must be a United States person and agree to be legally responsible for the
debt securities.
- The merger or sale of assets must not cause a default on the debt
securities and we must not already be in default (unless the merger or
sale would cure the default). For purposes of this no-default test, a
default would include an Event of Default that has occurred and has not
been cured, as described on page 12 under "What Is an Event of Default?".
A default for this purpose would also include any event that would be an
Event of Default if the requirements for giving us a notice of default or
our default having to exist for a specific period of time were
disregarded.
- We must deliver certain certificates and documents to the trustee.
- We must satisfy any other requirements specified in the prospectus
supplement relating to a particular series of debt securities.
No merger or sale of assets may be made if as a result any of our property
or assets or any property or assets of one of our subsidiaries would become
subject to any mortgage, lien or other encumbrance unless either (i) the
mortgage, lien or other encumbrance could be created pursuant to the limitation
on liens covenant in the senior indenture (see "--Limitation on Liens" above)
without equally and ratably securing the senior indenture securities or
(ii) the senior indenture securities are secured equally and ratably with or
prior to the debt secured by the mortgage, lien or other encumbrance.
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DEFEASANCE
The following provisions will be applicable to each series of debt
securities unless we state in the applicable prospectus supplement that the
provisions of covenant defeasance and full defeasance will not be applicable to
that series.
COVENANT DEFEASANCE. Under current federal tax law, we can make the deposit
described below and be released from some of the restrictive covenants in the
indentures under which the particular series was issued. This is called
"covenant defeasance". In that event, you would lose the protection of those
restrictive covenants but would gain the protection of having money and
government securities set aside in trust to repay your debt securities. If you
hold subordinated securities, you also would be released from the subordination
provisions described under "Subordinated Indenture Provisions--Subordination" on
page 18. In order to achieve covenant defeasance, we must do the following:
- We must deposit in trust for the benefit of all holders of the debt
securities of the particular series a combination of money and U.S.
government or U.S. government agency notes or bonds that will generate
enough cash to make interest, principal and any other payments on the debt
securities on their various due dates.
- We must deliver to the trustee a legal opinion of our counsel confirming
that, under current federal income tax law, we may make the above deposit
without causing you to be taxed on the debt securities any differently
than if we did not make the deposit and just repaid the debt securities
ourselves at maturity. If we accomplish covenant defeasance, you can still
look to us for repayment of the debt securities if there were a shortfall
in the trust deposit or the trustee is prevented from making payment. In
fact, if one of the remaining Events of Default occurred (such as our
bankruptcy) and the debt securities became immediately due and payable,
there might be a shortfall. Depending on the event causing the default,
you may not be able to obtain payment of the shortfall.
FULL DEFEASANCE. If there is a change in federal tax law, as described
below, we can legally release ourselves from all payment and other obligations
on the debt securities of a particular series (called "full defeasance") if we
put in place the following other arrangements for you to be repaid:
- We must deposit in trust for the benefit of all holders of the debt
securities of the particular series a combination of money and U.S.
government or U.S. government agency notes or bonds that will generate
enough cash to make interest, principal and any other payments on the debt
securities on their various due dates.
- We must deliver to the trustee a legal opinion confirming that there has
been a change in current federal tax law or an IRS ruling that lets us
make the above deposit without causing you to be taxed on the debt
securities any differently than if we did not make the deposit and just
repaid the debt securities ourselves at maturity. Under current federal
tax law, the deposit and our legal release from the debt securities would
be treated as though we paid you your share of the cash and notes or bonds
at the time the cash and notes or bonds were deposited in trust in
exchange for your debt securities and you would recognize gain or loss on
the debt securities at the time of the deposit.
If we ever did accomplish full defeasance, as described above, you would
have to rely solely on the trust deposit for repayment of the debt securities.
You could not look to us for repayment in the unlikely event of any shortfall.
Conversely, the trust deposit would most likely be protected from claims of our
lenders and other creditors if we ever became bankrupt or insolvent. If you had
subordinated securities, you would also be released from the subordination
provisions described later under "--Subordination".
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HOLDERS OF REGISTERED DEBT SECURITIES
BOOK-ENTRY HOLDERS. We will issue registered debt securities in book-entry
form only, unless we specify otherwise in the applicable prospectus supplement.
This means debt securities will be represented by one or more global securities
registered in the name of a depositary that will hold them on behalf of
financial institutions that participate in the depositary's book-entry system.
These participating institutions, in turn, hold beneficial interests in the debt
securities held by the depositary or its nominee. These institutions may hold
these interests on behalf of themselves or customers.
Under the indenture, only the person in whose name a debt security is
registered is recognized as the holder of that debt security. Consequently, for
debt securities issued in global form, we will recognize only the depositary as
the holder of the debt securities and we will make all payments on the debt
securities to the depositary. The depositary will then pass along the payments
it receives to its participants, which in turn will pass the payments along to
their customers who are the beneficial owners. The depositary and its
participants do so under agreements they have made with one another or with
their customers; they are not obligated to do so under the terms of the debt
securities. As a result, investors will not own debt securities directly.
Instead, they will own beneficial interests in a global security, through a
bank, broker or other financial institution that participates in the
depositary's book-entry system or holds an interest through a participant. As
long as the debt securities are issued in global form, investors will be
indirect holders, and not holders, of the debt securities.
STREET NAME HOLDERS. In the future, we may issue debt securities in
certificated form or terminate a global security. In these cases, investors may
choose to hold their debt securities in their own names or in "street name".
Debt securities held in street name are registered in the name of a bank, broker
or other financial institution chosen by the investor, and the investor would
hold a beneficial interest in those debt securities through the account he or
she maintains at that institution. For debt securities held in street name, we
will recognize only the intermediary banks, brokers and other financial
institutions in whose names the debt securities are registered as the holders of
those debt securities and we will make all payments on those debt securities to
them. These institutions will pass along the payments they receive to their
customers who are the beneficial owners, but only because they agree to do so in
their customer agreements or because they are legally required to do so.
Investors who hold debt securities in street name will be indirect holders, and
not holders, of the debt securities.
LEGAL HOLDERS. Our obligations, as well as the obligations of the
applicable trustee and those of any third parties employed by us or the
applicable trustee, run only to the legal holders of the debt securities. We do
not have obligations to investors who hold beneficial interests in global
securities, in street name or by any other indirect means. This will be the case
whether an investor chooses to be an indirect holder of a debt security or has
no choice because we are issuing the debt securities only in global form. For
example, once we make a payment or give a notice to the holder, we have no
further responsibility for the payment or notice even if that holder is
required, under agreements with depositary participants or customers or by law,
to pass it along to the indirect holders but does not do so. Similarly, if we
want to obtain the approval of the holders for any purpose (for example, to
amend an indenture or to relieve us of the consequences of a default or of our
obligation to comply with a particular provision of an indenture), we would seek
the approval only from the holders, and not the indirect holders, of the debt
securities. Whether and how the holders contact the indirect holders is up to
the holders.
When we refer to you, we mean those who invest in the debt securities being
offered by this prospectus, whether they are the holders or only indirect
holders of those debt securities. When we refer to your debt securities, we mean
the debt securities in which you hold a direct or indirect interest.
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SPECIAL CONSIDERATIONS FOR INDIRECT HOLDERS. If you hold debt securities
through a bank, broker or other financial institution, either in book-entry form
or in street name, we urge you to check with that institution to find out:
- how it handles securities payments and notices,
- whether it imposes fees or charges,
- how it would handle a request for the holders' consent, if ever required,
- whether and how you can instruct it to send you debt securities registered
in your own name so you can be a holder, if that is permitted in the
future for a particular series of debt securities,
- how it would exercise rights under the debt securities if there were a
default or other event triggering the need for holders to act to protect
their interests, and--if the debt securities are in book-entry form, how
the depositary's rules and procedures will affect these matters.
GLOBAL SECURITIES
WHAT IS A GLOBAL SECURITY? As noted above, we usually will issue debt
securities as registered securities in book-entry form only. A global security
represents one or any other number of individual debt securities. Generally, all
debt securities represented by the same global securities will have the same
terms.
Each debt security issued in book-entry form will be represented by a global
security that we deposit with and register in the name of a financial
institution or its nominee that we select. The financial institution that we
select for this purpose is called the depositary. Unless we specify otherwise in
the applicable prospectus supplement, The Depositary Trust Company, New York,
New York, known as DTC, will be the depositary for all debt securities issued in
book-entry form.
A global security may not be transferred to or registered in the name of
anyone other than the depositary or its nominee, unless special termination
situations arise. We describe those situations below under "Special Situations
when a Global Security Will Be Terminated". As a result of these arrangements,
the depositary, or its nominee, will be the sole registered owner and holder of
all debt securities represented by a global security, and investors will be
permitted to own only beneficial interests in a global security. Beneficial
interests must be held by means of an account with a broker, bank or other
financial institution that in turn has an account with the depositary or with
another institution that has an account with the depositary. Thus, an investor
whose security is represented by a global security will not be a holder of the
debt security, but only an indirect holder of a beneficial interest in the
global security.
SPECIAL CONSIDERATIONS FOR GLOBAL SECURITIES. As an indirect holder, an
investor's rights relating to a global security will be governed by the account
rules of the investor's financial institution and of the depositary, as well as
general laws relating to securities transfers. The depositary that holds the
global security will be considered the holder of the debt securities represented
by the global security.
If debt securities are issued only in the form of a global security, an
investor should be aware of the following:
- An investor cannot cause the debt securities to be registered in his or
her name, and cannot obtain non-global certificates for his or her
interest in the debt securities, except in the special situations we
describe below.
- An investor will be an indirect holder and must look to his or her own
bank or broker for payments on the debt securities and protection of his
or her legal rights relating to the debt securities, as we describe under
"Holders of Registered Debt Securities" above.
14
- An investor may not be able to sell interests in the debt securities to
some insurance companies and other institutions that are required by law
to own their securities in non-book-entry form.
- An investor may not be able to pledge his or her interest in a global
security in circumstances where certificates representing the debt
securities must be delivered to the lender or other beneficiary of the
pledge in order for the pledge to be effective.
- The depositary's policies, which may change from time to time, will govern
payments, transfers, exchanges and other matters relating to an investor's
interest in a global security. We and the trustee have no responsibility
for any aspect of the depositary's actions or for its records of ownership
interests in a global security. We and the trustee also do not supervise
the depositary in any way.
- DTC requires that those who purchase and sell interests in a global
security deposited in its book-entry system use immediately available
funds. Your broker or bank may also require you to use immediately
available funds when purchasing or selling interests in a global security.
- Financial institutions that participate in the depositary's book-entry
system, and through which an investor holds its interest in a global
security, may also have their own policies affecting payments, notices and
other matters relating to the debt security. There may be more than one
financial intermediary in the chain of ownership for an investor. We do
not monitor and are not responsible for the actions of any of those
intermediaries.
SPECIAL SITUATIONS WHEN A GLOBAL SECURITY WILL BE TERMINATED. In a few
special situations described below, a global security will be terminated and
interests in it will be exchanged for certificates in non-global form
(certificated securities). After that exchange, the choice of whether to hold
the certificated debt securities directly or in street name will be up to the
investor. Investors must consult their own banks or brokers to find out how to
have their interests in a global security transferred on termination to their
own names, so that they will be holders. We have described the rights of holders
and street name investors under "Holders of Registered Debt Securities" above.
The special situations for termination of a global security are as follows:
- if the depositary notifies us that it is unwilling, unable or no longer
qualified to continue as depositary for that global security, and we do
not appoint another institution to act as depositary within 60 days,
- if we notify the trustee that we wish to terminate that global security,
or
- if an event of default has occurred with regard to the debt securities
represented by that global security and has not been cured or waived; we
discuss defaults later under "Events of Default".
The prospectus supplement may list situations for terminating a global
security that would apply only to the particular series of debt securities
covered by the prospectus supplement. If a global security is terminated, only
the depositary, and not we or the applicable trustee, is responsible for
deciding the names of the institutions in whose names the debt securities
represented by the global security will be registered and, therefore, who will
be the holders of those debt securities.
PAYMENT AND PAYING AGENTS
We will pay interest to the person listed in the applicable trustee's
records as the owner of the debt security at the close of business on a
particular day in advance of each due date for interest, even if that person no
longer owns the debt security on the interest due date. That day, usually about
two weeks in advance of the interest due date, is called the "record date".
Because we will pay all the interest for an interest period to the holders on
the record date, holders buying and selling debt securities must work out
between themselves the appropriate purchase price. The most common
15
manner is to adjust the sales price of the debt securities to prorate interest
fairly between buyer and seller based on their respective ownership periods
within the particular interest period. This prorated interest amount is called
"accrued interest".
PAYMENTS ON GLOBAL SECURITIES. We will make payments on a global security
in accordance with the applicable policies of the depositary as in effect from
time to time. Under those policies, we will make payments directly to the
depositary, or its nominee, and not to any indirect holders who own beneficial
interests in the global security. An indirect holder's right to those payments
will be governed by the rules and practices of the depositary and its
participants, as described under "What Is a Global Security?".
PAYMENTS ON CERTIFICATED SECURITIES. We will make payments on a debt
security in non-global certificated form as follows. We will pay interest that
is due on an interest payment date by check mailed on the interest payment date
to the holder at his or her address shown on the trustee's records as of the
close of business on the regular record date. We will make all payments of
principal and premium, if any, by check at the office of the applicable trustee
in New York, NY and/or at other offices that may be specified in the prospectus
supplement or in a notice to holders, against surrender of the debt security.
All payments by check will be made in next-day funds, that is funds that become
available on the day after the check is cashed.
Alternatively, if a certificated security has a face amount of at least
$10,000,000 and the holder asks us to do so, we will pay any amount that becomes
due on the debt security by wire transfer of immediately available funds to an
account at a bank in New York City, on the due date. To request payment by wire,
the holder must give the applicable trustee or other paying agent appropriate
transfer instructions at least 15 business days before the requested wire
payment is due. In the case of any interest payment due on an interest payment
date, the instructions must be given by the person who is the holder on the
relevant regular record date. Any wire instructions, once properly given, will
remain in effect unless and until new instructions are given in the manner
described above.
PAYMENT WHEN OFFICES ARE CLOSED. If any payment is due on a debt security
on a day that is not a business day, we will make the payment on the next day
that is a business day. Payments postponed to the next business day in this
situation will be treated under the indentures as if they were made on the
original due date. A postponement of this kind will not result in a default
under any debt security or either indenture, and no interest will accrue on the
postponed amount from the original due date to the next day that is a business
day.
BOOK-ENTRY AND OTHER INDIRECT HOLDERS SHOULD CONSULT THEIR BANKS OR BROKERS
FOR INFORMATION ON HOW THEY WILL RECEIVE PAYMENTS ON THEIR DEBT SECURITIES.
FORM, EXCHANGE AND TRANSFER OF REGISTERED SECURITIES
If registered debt securities cease to be issued in global form, they will
be issued:
- only in fully registered certificated form,
- without interest coupons, and
- unless we indicate otherwise in the prospectus supplement, in
denominations of $1,000 and amounts that are multiples of $1,000.
Holders may exchange their certificated securities for debt securities of
smaller denominations or combined into fewer debt securities of larger
denominations, as long as the total principal amount is not changed.
Holders may exchange or transfer their certificated securities at the office
of their trustee. We have appointed the trustee to act as our agent for
registering debt securities in the names of holders
16
transferring debt securities. We may appoint another entity to perform these
functions or perform them ourselves.
Holders will not be required to pay a service charge to transfer or exchange
their certificated securities, but they may be required to pay any tax or other
governmental charge associated with the transfer or exchange. The transfer or
exchange will be made only if our transfer agent is satisfied with the holder's
proof of legal ownership.
If we have designated additional transfer agents for your debt security,
they will be named in your prospectus supplement. We may appoint additional
transfer agents or cancel the appointment of any particular transfer agent. We
may also approve a change in the office through which any transfer agent acts.
If any certificated securities of a particular series are redeemable and we
redeem less than all the debt securities of that series, we may block the
transfer or exchange of those debt securities during the period beginning 15
days before the day we mail the notice of redemption and ending on the day of
that mailing, in order to freeze the list of holders to prepare the mailing. We
may also refuse to register transfers or exchanges of any certificated
securities selected for redemption, except that we will continue to permit
transfers and exchanges of the unredeemed portion of any debt security that will
be partially redeemed.
If a registered debt security is issued in global form, only the depositary
will be entitled to transfer and exchange the debt security as described in this
subsection, since it will be the sole holder of the debt security.
THE TRUSTEE UNDER THE INDENTURE
Manufacturers and Traders Trust Company is a bank with which we maintain
ordinary banking relationships and from which we have obtained credit facilities
and lines of credit.
RESIGNATION OF TRUSTEE
The trustee may resign or be removed with respect to one or more series of
indenture securities provided that a successor trustee is appointed to act with
respect to these series. In the event that two or more persons are acting as
trustee with respect to different series of indenture securities under one of
the indentures, each of the trustees will be a trustee of a trust separate and
apart from the trust administered by any other trustee.
CERTAIN CONSIDERATIONS RELATING TO FOREIGN CURRENCIES
Debt securities denominated or payable in foreign currencies may entail
significant risks. These risks include the possibility of significant
fluctuations in the foreign currency markets, the imposition or modification of
foreign exchange controls and potential illiquidity in the secondary market.
These risks will vary depending upon the currency or currencies involved and
will be more fully described in the applicable prospectus supplement.
17
PLAN OF DISTRIBUTION
We may sell the offered securities:
- to or through underwriters
- through agents; or
- directly to other purchasers
The distribution of the debt securities may be effected from time to time in
one or more transactions at a fixed price or prices, which may be changed, or at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
In connection with the sale of debt securities, underwriters may receive
compensation from us or from purchasers of debt securities for whom they may act
as agents in the form of discounts, concessions or commissions. Underwriters may
sell debt 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
agents. Underwriters, dealers and agents that participate in the distribution of
debt securities may be deemed to be underwriters, and any discounts or
commissions received by them from the Company and any profit on the resale of
debt securities by them may be deemed to be underwriting discounts and
commissions, under the Securities Act. Any such underwriter or agent will be
identified, and any such compensation received from us will be described, in the
prospectus supplement.
Under agreements which may be entered into us, underwriters and agents who
participate in the distribution of debt securities may be entitled to
indemnification by us against certain liabilities, including liabilities under
the Securities Act.
LEGAL MATTERS
The validity of the securities will be passed upon for us by Steven J. Ford,
our Vice President, Secretary and General Counsel and for any underwriters by
Shearman & Sterling, New York, New York.
EXPERTS
The financial statements incorporated by reference in this prospectus and
elsewhere in the registration statement have been audited by Arthur Andersen
LLP, independent public accountants, as indicated in their reports with respect
thereto, and are included herein in reliance upon the authority of said firm as
experts in giving said reports.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses in connection with the issuance
and distribution of the securities being registered, other than underwriting
discounts and commissions. All of the amounts shown are estimates, except the
SEC registration fee.
SEC registration fee........................................ $ 87,500
Printing and engraving...................................... 15,000
Legal fees and expenses..................................... 15,000
Accounting fees............................................. 30,000
Fees and expenses of Trustee................................ 5,000
Blue sky fees and expenses.................................. 5,000
Rating agency fees.......................................... 60,000
Miscellaneous............................................... 32,500
Total..................................................... $250,000
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of Delaware authorizes registrant
to indemnify its directors and officers under specified circumstances. The
Certificate of the Company provides for indemnification of its officers and
directors to the full extent authorized by law.
Section 145 of the General Corporation Law of Delaware also authorizes
Carlisle Companies Incorporated to indemnify persons who serve as directors or
officers of registrant at the request of the Company under specified
circumstances. The Certificate of the Company provides in effect that Carlisle
Companies Incorporated shall provide certain indemnification to such persons.
The directors and officers of the registrant are insured, under policies of
insurance maintained by the registrant, within the limits and subject to the
limitations of the policies, against certain expenses in connection with the
defense of actions, suits or proceedings, to which they are parties by reason of
being or having been such directors or officers.
Furthermore, the underwriting agreement basic provisions provide for
indemnification of directors of directors, officers who sign the registration
statement and controlling persons of the registrant by the underwriters, and for
indemnification of each underwriter and its controlling persons by the
registrant, against certain liabilities. Similar provisions are contained in
agreements entered into between the registrant and groups of underwriters on
past occasions.
II-1
ITEM 16. LIST OF EXHIBITS
*1 -- Form of underwriting agreement (Exhibit 1 to Registration
Statement on Form S-3 No. 333-16785)
**4 -- Indenture dated January 15, 1997
**5 -- Opinion of Steven J. Ford as to legality of the securities
being registered
***12 -- Statement Regarding Computation of Ratio of Earnings to
Fixed Charges
***23.1 -- Consent of Arthur Andersen LLP
**23.2 -- Consent of Steven J. Ford (contained in Exhibit 5)
**24 -- Power of Attorney
**25 -- Form T-1 Statement of Eligibility and Qualification of
Trustee under the Trust Indenture Act of 1939
------------------------
* Incorporated by reference
** Previously filed
*** To be 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 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;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form S-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to section 13 or section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial BONA FIDE offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) 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
II-2
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.
(c) 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 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.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Syracuse, State of New York, on
March 6, 2002.
CARLISLE COMPANIES INCORPORATED
By: *
-----------------------------------------
Richmond D. McKinnish
PRESIDENT AND CHIEF EXECUTIVE OFFICER
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Registration Statement has been signed below by the following
persons in the capacities and on the date indicated.
SIGNATURE TITLE DATE
--------- ----- ----
*
------------------------------------------- Chairman of the Board of
Stephen P. Munn Directors and a Director
President, Chief Executive
* Officer and a Director
------------------------------------------- (Principal Executive
Richmond D. McKinnish Officer)
* Vice Chairman of the Board
------------------------------------------- of Directors and a
Dennis J. Hall Director
Vice President and Chief
* Financial Officer
------------------------------------------- (Principal Financial
Kirk F. Vincent Officer and Principal
Accounting Officer)
*
------------------------------------------- Director
Donald G. Calder
*
------------------------------------------- Director
Paul J. Choquette, Jr.
II-4
SIGNATURE TITLE DATE
--------- ----- ----
*
------------------------------------------- Director
Peter L.A. Jamieson
*
------------------------------------------- Director
Peter F. Krogh
*
------------------------------------------- Director
G. Fitzgerald Ohrstrom
*
------------------------------------------- Director
Anthony W. Ruggiero
*
------------------------------------------- Director
Eriberto R. Scocimara
*
------------------------------------------- Director
Robin W. Sternbergh
*
------------------------------------------- Director
Magalen C. Webert
*By: /s/ STEVEN J. FORD
------------------------------------------- Vice President, Secretary March 6, 2002
Steven J. Ford and General Counsel
II-5
EXHIBIT INDEX
*1 -- Form of underwriting agreement (Exhibit 1 to Registration
Statement on Form S-3 No. 333-16785)
**4 -- Indenture dated January 15, 1997
**5 -- Opinion of Steven J. Ford as to legality of the securities
being registered
***12 -- Statement Regarding Computation of Ratio of Earnings to
Fixed Charges
***23.1 -- Consent of Arthur Andersen LLP
**23.2 -- Consent of Steven J. Ford (contained in Exhibit 5)
**24 -- Power of Attorney
**25 -- Form T-1 Statement of Eligibility and Qualification of
Trustee under the Trust Indenture Act of 1939
------------------------
* Incorporated by reference
** Previously filed
*** To be filed herewith