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Filed Pursuant to Rule 424(b)(3)
Registration Statement No. 33-49285
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PROSPECTUS
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Eastman Kodak Company
Debt Securities
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Eastman Kodak Company (the "Company") may offer from time
to time in one or more series its debt securities (the "Debt
Securities") up to an aggregate initial public offering price of
$2,200,000,000, or the equivalent thereof in one or more foreign
currencies or composite currencies, each series of which will be
offered on terms to be determined at the time of sale. The Debt
Securities may be sold for U.S. dollars or one or more foreign or
composite currencies. The principal of and any interest on the
Debt Securities may likewise be payable in U.S. dollars or one or
more foreign or composite currencies.
The terms of the Debt Securities, including, where
applicable, the specific designation, aggregate principal amount,
currency, denominations, maturity, premium, rate (which may be
fixed or floating) and time of payment of interest, terms for
redemption at the option of the Company or the Holder, terms for
sinking fund payments, the initial public offering price, and
other terms in connection with the offering and sale of the Debt
Securities in respect of which this Prospectus is being delivered
are set forth in the accompanying Prospectus Supplement (the
"Prospectus Supplement").
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE 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 Debt Securities may be sold through underwriting
syndicates represented by managing underwriters, by underwriters
without a syndicate, through agents designated from time to time,
or directly to investors. The names of any underwriters or agents
of the Company involved in the sale of the Debt Securities in
respect of which this Prospectus is being delivered and any
applicable commissions or discounts are set forth in the
Prospectus Supplement. The net proceeds to the Company from such
sale are also set forth in the Prospectus Supplement.
The date of this Prospectus is June 25, 1998.
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO
GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED
IN THIS PROSPECTUS OR THE 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 THE PROSPECTUS SUPPLEMENT DO
NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO
BUY ANY OF THE SECURITIES OFFERED HEREBY IN ANY JURISDICTION TO
ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER IN SUCH
JURISDICTION.
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of
the Securities Exchange Act of 1934 ("Exchange Act") and, in
accordance therewith, files reports, proxy statements and other
information with the Securities and Exchange Commission
("Commission"). Such reports, proxy statements and other
information concerning the Company can be inspected and copied at
Room 1024 of the Commission's office at 450 Fifth Street, N.W.,
Washington, D.C. 20549 and the Commission's Regional Offices in
New York (Seven World Trade Center, 13th Floor, New York, New
York 10048) and Chicago (Citicorp Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661). Copies of such
material can be obtained 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 Web site
(http://www.sec.gov) that contains reports, proxy and information
statements and other information regarding the Company. Reports,
proxy material and other information concerning the Company also
may be inspected at the offices of The New York Stock Exchange,
Inc., 20 Broad Street, New York, New York 10005. This Prospectus
does not contain all information set forth in the Registration
Statement, of which this Prospectus is a part, and Exhibits
thereto which the Company has filed with the Commission under the
Securities Act of 1933 ("Securities Act") and to which reference
is hereby made.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following reports, which were filed by the Company
(Commission File No.1-87) with the Commission under the Exchange
Act, are incorporated in this Prospectus by reference:
(1) Annual Report on Form 10-K, as amended, for the year
ended December 31, 1997;
(2) Quarterly Report on Form 10-Q for the quarter ended
March 31, 1998; and
(3) Proxy Statement on Schedule 14A dated March 20, 1998.
All documents filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the
date of this Prospectus and prior to the termination of the
offering of the Debt Securities, except for that information
identified in Regulation S-K Item 402(a)(8), shall be deemed to
be incorporated by reference into this Prospectus.
Any statement contained herein or in a document
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 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 or superseded shall not
be deemed, except as so modified or superseded, to constitute a
part of this Prospectus.
ANY PERSON RECEIVING A COPY OF THIS PROSPECTUS, INCLUDING
ANY BENEFICIAL OWNER OF DEBT SECURITIES, MAY OBTAIN WITHOUT
CHARGE, UPON ORAL OR WRITTEN REQUEST, A COPY OF ANY OF THE
DOCUMENTS INCORPORATED BY REFERENCE HEREIN, EXCEPT FOR THE
EXHIBITS TO SUCH DOCUMENTS WHICH ARE NOT SPECIFICALLY
INCORPORATED BY REFERENCE INTO SUCH DOCUMENTS. WRITTEN REQUESTS
SHOULD BE MAILED TO JOYCE P. HAAG, SECRETARY, EASTMAN KODAK
COMPANY, 343 STATE STREET, ROCHESTER, NEW YORK 14650-0218.
TELEPHONE REQUESTS MAY BE DIRECTED TO MS. HAAG AT (716) 724-4368.
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THE COMPANY
The Company is engaged primarily in developing,
manufacturing and marketing consumer and commercial imaging
products. The Company's principal executive offices are located
at 343 State Street, Rochester, New York 14650 (telephone: (716)
724-4000).
For financial reporting purposes, the Company operates a
consumer imaging segment and a commercial imaging segment.
The products of the consumer imaging segment are used for
capturing, recording or displaying a consumer originated image.
For example, traditional amateur photography requires, at a
minimum, a camera, film and photofinishing. Photofinishing
requires equipment and supplies, including chemicals and paper
for prints.
The Company manufactures and markets various components of
imaging systems. For traditional amateur photography, the Company
supplies films, photographic papers, processing services,
photographic chemicals, cameras (including single-use) and
projectors. The Advanced Photo System is an amateur system of
cameras, films and photofinishing which delivers a variety of
consumer features such as drop-in loading, multiple print size
options, index prints, and negatives returned in the cartridge.
The Company has also developed digital camera systems which do
not use silver halide film technology.
The Company's consumer imaging products and services are
distributed worldwide through a variety of channels. Individual
products are often used in substantial quantities in more than
one market. Most sales of the consumer imaging segment are made
through retailers. Independent retail outlets selling the
Company's amateur products total many thousands. In a few areas
abroad, the Company's products are marketed by independent
national distributors. Certain products may be purchased through
the Internet.
The commercial imaging segment consists of businesses that
serve the imaging and information needs of commercial customers.
Products in this segment are used to capture, store, process and
display images and information in a variety of forms.
The Company's products for the commercial imaging segment
include films, photographic papers, photographic plates,
chemicals, processing equipment and audiovisual equipment, as
well as copiers, graphic arts films, microfilm products,
applications software, printers and other business equipment,
supplies and service agreements to support these products. These
products serve professional photofinishers, professional
photographers, customers in the health care industry, and
customers in motion picture, television, commercial printing and
publishing, office automation, banking, insurance and government
markets. Recently introduced commercial imaging products include
digital and applied imaging products which capture, store and
print images in an electronic format.
Kodak Polychrome Graphics, a 50/50 joint venture with Sun
Chemical Corporation, was formed on December 31, 1997. The joint
venture will assume responsibility for the photographic plate
business, as well as for the marketing of the Company's graphic
arts films.
The Company's commercial imaging products and services are
distributed through a variety of channels. The Company also sells
and leases business equipment directly to users, and has a
presence on the Internet. The Company manufactures copiers, which
are sold and serviced by Danka Business Systems PLC.
USE OF PROCEEDS
Except as otherwise described in the Prospectus Supplement,
the Company intends to use the net proceeds from the sale of the
Debt Securities for general corporate purposes.
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges was 8.1, 1.2, 8.9,
12.1, 2.6 and 2.1 for the quarter ended March 31, 1998 and the
years 1997, 1996, 1995, 1994 and 1993 respectively. The ratio of
earnings to fixed charges, before deducting restructuring costs,
was 8.1, 8.6, 12.8, 12.1, 3.1 and 2.7 for the quarter ended March
31, 1998 and the years 1997, 1996, 1995, 1994 and 1993
respectively. For purposes of this ratio, earnings represent
earnings from continuing operations before income taxes plus
interest expense, the interest component of rental expense and
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amortization of capitalized interest. Fixed charges consist of
interest expense, the interest component of rental expense and
capitalized interest. (The interest portion of rental expense is
assumed to approximate one third of rental expense.)
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt
Securities 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 January 1, 1988 between the Company and The Bank of
New York, as Trustee (the "Trustee"), as supplemented by a First
Supplemental Indenture thereto dated as of September 6, 1991, a
Second Supplemental Indenture thereto dated as of September 20,
1991, a Third Supplemental Indenture thereto dated as of January
8, 1993 and a Fourth Supplemental Indenture thereto dated as of
March 1, 1993 (as so supplemented, the "Indenture"). A copy of
the Indenture is filed as an exhibit to the Registration
Statement of which this Prospectus forms a part. The following
summaries of certain provisions of the Indenture and the Debt
Securities are not complete and are qualified in their entirety
by reference to the provisions of the Indenture. Numerical
references in parentheses are to sections in the Indenture and
unless otherwise indicated capitalized terms have the meanings
given them in the Indenture.
General
The Indenture does not limit the aggregate principal amount
of Debt Securities that may be issued thereunder and provides
that Debt Securities may be issued from time to time in one or
more series. (Section 301)
The Debt Securities will be unsecured obligations of the
Company and will rank on a parity with all other unsecured and
unsubordinated indebtedness of the Company.
Reference is made to the Prospectus Supplement relating to
the particular series of Debt Securities offered thereby for a
description of the terms of such Debt Securities in respect of
which this Prospectus is being delivered, inducing, where
applicable: (i) the title of such Debt Securities; (ii) any limit
on the aggregate principal amount of such Debt Securities; (iii)
the price (expressed as a percentage of the aggregate principal
amount thereof) at which such Debt Securities will be issued;
(iv) the date or dates on which the principal of such Debt
Securities is payable; (v) the currency of denomination of such
Debt Securities, which may be U.S. dollars, any foreign currency
or any composite currency; (vi) the designation of the currency
or currencies in which such Debt Securities are being sold and in
which the principal of (and premium, if any) and interest on such
Debt Securities will be paid, and the designation, if any, of the
currency or currencies in which the principal of (and premium, if
any) or interest on such Debt Securities may also be payable at
the election of a Holder thereof; (vii) the rate or rates (which
may be fixed or floating), if any, at which such Debt Securities
will bear interest, the date or dates from which such interest
will accrue, the dates on which such interest will be payable,
and the Regular Record Date for the interest payable on any
interest payment date; (viii) the manner in which the amount of
payments of principal of (and premium, if any) or interest on the
Debt Securities is to be determined if such determination is to
be made with reference to an index; (ix) whether the Debt
Securities may be exchanged at the option of a Holder thereof for
equity or debt securities of an issuer other than the Company
and, if so, the terms and provisions relating to any such
exchange; (x) the terms and conditions, if any, on which such
Debt Securities may be redeemed by the Company; (xi) the
obligation, if any, of the Company to redeem, repay or purchase
such Debt Securities pursuant to any sinking fund or at the
option of a Holder thereof, and the terms and conditions on which
such Debt Securities shall be redeemed, repaid or purchased
pursuant to such obligation, including if applicable a statement
that the Company will comply with all applicable tender offer
rules, including Rule 14e-1 under the Exchange Act, in connection
with any such redemption, repayment or purchase; (xii) any
additional Events of Default or restrictive covenants provided
for with respect to such Debt Securities; (xiii) whether such
Debt Securities will be issuable in registered form or bearer
form or both and, if issuable in bearer form, restrictions
applicable to the exchange of one form for another and to the
offer, sale, and delivery of certificates in bearer form; (xiv)
whether and under what circumstances the Company will pay
additional amounts on such Debt Securities held by a person who
is not a U.S. person in respect of any tax,
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assessment, or governmental charge withheld or deducted and, if
so, whether the Company will have the option to redeem such Debt
Securities rather than pay such additional amounts; (xv) federal
income tax consequences; and (xvi) any other terms not
inconsistent with the Indenture, including any terms which may be
required by or advisable under United States laws or regulations.
(Section 301)
Unless otherwise indicated in the Prospectus Supplement,
the Debt Securities will be issued only in fully registered form
without coupons. Debt Securities denominated in dollars will be
issued in denominations of $1,000 or any integral multiple
thereof (Section 302), except as otherwise provided in the
Prospectus Supplement. The Prospectus Supplement relating to a
series of Debt Securities denominated in a composite currency or
any foreign currency or currencies will specify the denominations
thereof.
One or more series of Debt Securities may be sold at a
substantial discount below their stated principal amount, bearing
no interest or interest at a rate which at the time of issuance
is below market rates. One or more series of Debt Securities may
be floating rate debt securities, exchangeable for fixed rate
debt securities. Federal income tax consequences and special
considerations applicable to any such series will be described in
the Prospectus Supplement relating thereto.
The principal of (and premium, if any) and interest on the
Debt Securities shall be payable at the Place or Places of
Payment designated for such Debt Securities, provided that
payment of interest on registered Debt Securities may be made at
the option of the Company by check mailed not later than the
applicable Interest Payment Date to the registered Holders of
such Debt Securities. (Sections 301, 305, 307 and 1002)
Debt Securities may be presented for exchange, and
registered Debt Securities may be presented for transfer, in the
manner, at the places, and subject to the restrictions set forth
in the Indenture and the Debt Securities and described in the
Prospectus Supplement. No service charge will be made for any
transfer or exchange of the Debt Securities, but the Company may
require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith. (Section
305)
Global Securities
The Debt Securities of a series may be issued in the form
of one or more fully registered Global Securities that will be
deposited with, or on behalf of, a depositary (the "Depositary")
identified in the Prospectus Supplement relating to such series.
Unless and until it is exchanged in whole or in part for Debt
Securities in definitive registered form, a Global Security may
not be transferred except as a whole by the Depositary for such
Global Security to a nominee of such Depositary or by a nominee
of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a
successor of such Depositary or a nominee of such successor.
(Section 305)
The specific terms of the depositary arrangement with
respect to a series of Debt Securities will be described in the
Prospectus Supplement relating to such series. The Company
anticipates that the following provisions will apply to all
depositary arrangements.
Upon the issuance of a Global Security, the Depositary for
such Global Security will credit, on its book-entry registration
and transfer system, the respective principal amounts of the Debt
Securities represented by such Global Security to accounts of
institutions that have accounts with such Depositary
("participants"). The accounts to be credited shall be designated
by the underwriters or agents of such Debt Securities or by the
Company, if such Debt Securities are offered and sold directly by
the Company. Ownership of beneficial interests in a Global
Security will be limited to participants or persons that may hold
interests through participants. Ownership of beneficial interests
in such Global Security will be shown on, and the transfer of
that ownership will be effected only through, records maintained
by the Depositary (with respect to participants' interests) for
such Global Security or by participants or persons that hold
through participants (with respect to beneficial owners'
interests). The laws of some states require that certain
purchasers of securities take physical delivery of such
securities in definitive form. Such limits and such laws may
impair the ability to transfer beneficial interest in a Global
Security.
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So long as the Depositary for a Global Security, or its
nominee, is the registered owner of such Global Security, such
Depositary or such nominee, as the case may be, will be
considered the sole owner or holder of the Debt Securities
represented by such Global Security for all purposes under the
Indenture. Except as set forth below or in the Prospectus
Supplement, owners of beneficial interests in a Global Security
will not be entitled to have Debt Securities of the series
represented by such Global Security registered in their names,
will not receive or be entitled to receive physical delivery of
Debt Securities of such series in definitive form and will not be
considered the owners or holders thereof under the Indenture.
Principal, premium, if any, and interest payments on Debt
Securities registered in the name of a Depositary or its nominee
will be made to the Depositary or its nominee, as the case may
be, as the registered owner of the Global Security or Securities
representing such Debt Securities. None of the Company, the
Trustee, any Paying Agent or the Security Registrar will have any
responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership
interests in a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership
interests.
The Company expects that the Depositary for a series of
Debt Securities, upon receipt of any payment of principal,
premium or interest, will credit immediately participants'
accounts with payments in amounts proportionate to their
respective beneficial interests in the principal amount of the
Global Security or Securities for such Debt Securities as shown
on the records of such Depositary. The Company also expects that
payments by participants to owners of beneficial interests in
such Global Security or Securities held through such participants
will be governed by standing instructions and customary
practices, as is now the case with securities held for the
accounts of customers in bearer form or registered in "street
name", and will be the responsibility of such participants.
If a Depositary for a series of Debt Securities is at any
time unwilling or unable to continue as Depositary and a
successor Depositary is not appointed by the Company within
ninety days, the Company will issue Debt Securities for such
series in definitive form in exchange for the Global Security or
Securities representing such series of Debt Securities. In
addition, the Company may at any time and in its sole discretion
determine not to have the Debt Securities of a series represented
by a Global Security or Securities and, in such event, will issue
Debt Securities of such series in definitive form in exchange for
the Global Security or Securities representing such series of
Debt Securities. In either instance, an owner of a beneficial
interest in a Global Security will be entitled to have Debt
Securities of the series represented by such Global Security
equal in principal amount to such beneficial interest registered
in its name and will be entitled to physical delivery of such
Debt Securities in definitive form. Debt Securities of such
series so issued in definitive form will be issued in
denominations of $1,000 and integral multiples thereof and will
be issued in registered form only, without coupons.
Further, if the Company so specifies with respect to the
Debt Securities of a series, an owner of a beneficial interest in
a Global Security representing Debt Securities of such series
may, on terms acceptable to the Company and the Depositary for
such Global Security, receive individual Debt Securities in
definitive registered form without coupons in exchange for such
beneficial interest. Such owner will be entitled to physical
delivery of individual Debt Securities of such series in
definitive registered form without coupons represented by such
Global Security equal in principal amount to such beneficial
interest and to have such Debt Securities registered in the names
and authorized denominations as such owner may request.
Events of Default
The following are Events of Default under the Indenture
with respect to Debt Securities of any series: (a) failure to pay
principal of or any premium on any Debt Security of that series
when due; (b) failure to pay any interest on any Debt Security of
that series when due, continued for 30 days; (c) failure to
deposit any sinking fund payment, when due, in respect of any
Debt Security of that series; (d) failure to perform any other
covenant of the Company in the Indenture (other than a covenant
included in the Indenture solely for the benefit of a series of
Debt Securities other than that series), continued for 60 days
after written notice as provided in the Indenture; (e) failure to
pay when due, or upon acceleration, the principal of Debt
Securities of any other series or any other indebtedness for
borrowed money of the Company which individually exceeds
$10,000,000, if such acceleration is not annulled, or such
indebtedness is not discharged, within 10 days after written
notice as provided in the Indenture; (f) certain
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events in bankruptcy, insolvency or reorganization; and (g) any
other Event of Default provided with respect to Debt Securities
of that series. (Section 501) If an Event of Default with respect
to Debt Securities of any series at the time Outstanding occurs
and is continuing, either the Trustee or the Holders of at least
25% in aggregate principal amount of the Outstanding Debt
Securities of that series may declare the principal amount (or,
if the Debt Securities of that series are Original Issue Discount
Securities, such portion of the principal amount as may be
specified in the terms of that series) of all the Debt Securities
of that series to be due and payable immediately. 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 acceleration has been obtained, the Holders of a
majority in aggregate principal amount of Outstanding Debt
Securities of that series may, under certain circumstances,
rescind and annul such acceleration. (Section 502)
The Indenture provides that, subject to the duty of the
Trustee during default to act with the required standard of care,
the Trustee will be under no obligation to exercise any of its
rights or powers under the Indenture at the request or direction
of any of the Holders, unless such Holders shall have offered to
the Trustee reasonable indemnity. (Section 603) Subject to such
provisions for the indemnification of the Trustee, the Holders of
a majority in aggregate principal amount of the Outstanding Debt
Securities of any series will have the right to direct the time,
method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power
conferred on the Trustee, with respect to the Debt Securities of
that series. (Section 512)
The Company is required to furnish to the Trustee annually
a statement as to the performance by the Company of certain of
its obligations under the Indenture and as to any default in such
performance. (Section 1007)
Modification and Waiver
Modifications and amendments of the Indenture may be made
by the Company and the Trustee with the consent of the Holders of
66 2/3% in aggregate principal amount of the Outstanding Debt
Securities of each series affected by such modification or
amendment; provided, however, that no such modification or
amendment may, without the consent of the Holder of each
Outstanding Debt Security affected thereby, (a) change the stated
maturity date of the principal of, or any installment of
principal or interest on, any Debt Security; (b) reduce the
principal amount of, or any premium or interest on, any Debt
Security; (c) reduce the amount of principal of an Original Issue
Discount Security payable upon acceleration of the maturity
thereof; (d) change the place or currency of payment of principal
of, or any premium or interest on, any Debt Security; (e) impair
the right to institute suit for the enforcement of any payment on
or with respect to any Debt Security; or (f) reduce the
percentage in principal amount of Outstanding Debt Securities of
any series, the consent of the Holders of which is required for
modification or amendment of the Indenture or for waiver of
compliance with certain provisions of the Indenture or for waiver
of certain default. (Section 902)
The Holders of 66 2/3% in aggregate principal amount of the
Outstanding Debt Securities of each series may, on behalf of all
Holders of Debt Securities of that series, waive, insofar as that
series is concerned, compliance by the Company with certain
restrictive provisions of the Indenture. (Section 1008) The
Holders of a majority in aggregate principal amount of the
Outstanding Debt Securities of each series may, on behalf of all
Holders of Debt Securities of that series, waive any past default
under the Indenture with respect to Debt Securities of that
series, except a default in the payment of principal or any
premium or interest. (Section 513)
Limitations on Liens
The Company covenants in the Indenture that it will not
issue, assume or guarantee, and will not permit any Restricted
Subsidiary to issue, assume or guarantee, any mortgage, security
interest, pledge, lien or other encumbrance ("mortgages") upon
any Principal Property of the Company or any Restricted
Subsidiary or upon any shares of stock or indebtedness of any
Restricted Subsidiary without equally and ratably securing the
Debt Securities. The foregoing restriction, however, will not
apply to (a) mortgages on property, shares of stock or
indebtedness of any corporation existing at the time such
corporation becomes a Restricted Subsidiary; (b) mortgages
existing at the time of acquisition of such property by the
Company or a Restricted Subsidiary or mortgages to secure the
payment of all or any part of the purchase price of such property
upon the acquisition thereof, or mortgages to secure the cost of
improvements to such acquired property; (c) mortgages to secure
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indebtedness of a Restricted Subsidiary to the Company or another
Restricted Subsidiary; (d) mortgages existing at the date of the
Indenture; (e) mortgages on property of a corporation existing at
the time such corporation is merged into or consolidated with the
Company or a Restricted Subsidiary; (f) certain mortgages in
favor of governmental entities; or (g) extensions, renewals or
replacements of any mortgage referred to in the foregoing clauses
(a) through (f). (Section 1010)
Notwithstanding the restrictions outlined in the preceding
paragraph, the Company or any Restricted Subsidiary will be
permitted to issue, assume or guarantee any mortgage without
equally and ratably securing the Debt Securities, provided that
after giving effect thereto, the aggregate amount of all debt so
secured by mortgages (not including mortgages permitted under
clauses (a) through (g) above) does not exceed 10% of
Consolidated Net Tangible Assets. (Section 1010)
Limitation on Sale and Lease-Back
The Company covenants that it will not, nor will it permit
any Restricted Subsidiary to, enter into any sale and lease-back
transaction with respect to any Principal Property other than any
such transaction involving a lease for a term of not more than
three years or any such transaction between the Company and a
Restricted Subsidiary or between Restricted Subsidiaries, unless
either (a) the Company or such Restricted Subsidiary would be
entitled to incur indebtedness secured by a mortgage on Principal
Property at least equal in amount to the Attributable Debt with
respect to such sale and lease-back transaction, without equally
and ratably securing the Debt Securities, pursuant to the
limitation in the Indenture on liens, or (b) the Company shall
apply an amount equal to the greater of the net proceeds of such
sale or the Attributable Debt with respect to such sale and
lease-back transaction to the retirement of indebtedness that
matures more than twelve months after the creation of such
indebtedness. (Section 1011)
Certain Definitions
The term "Attributable Debt" when used in connection with a
sale and lease-back transaction referred to above shall mean, at
the time of determination, the lesser of (a) the fair value of
such property (as determined by the Board of Directors of the
Company) or (b) the present value (discounted at the annual rate
of 9%, compounded semi-annually) of the obligation of the lessee
for net rental payments during the remaining term of the lease
(including any period for which such lease has been extended).
The term "Consolidated Net Tangible Assets" shall mean, as
of any particular time, the aggregate amount of assets (less
applicable reserves and other properly deductible items) after
deducting therefrom (a) all current liabilities except for (1)
notes and loans payable, (2) current maturities of long-term debt
and (3) current maturities of obligations under capital leases
and (b) all goodwill, tradenames, trademarks, patents,
unamortized debt discount and expenses (to the extent included in
said aggregate amount of assets) and other like intangibles, all
as set forth on the most recent consolidated balance sheet of the
Company and its consolidated Subsidiaries and computed in
accordance with generally accepted accounting principles.
The term "Principal Property" shall mean any manufacturing
plant or manufacturing facility which is (i) owned by the Company
or any Restricted Subsidiary, (ii) located within the continental
United States of America, and (iii) in the opinion of the Board
of Directors materially important to the total business conducted
by the Company and the Restricted Subsidiaries taken as a whole.
The term "Restricted Subsidiary" shall mean any Subsidiary
(i) substantially all the property of which is located within the
continental United States of America and (ii) which owns any
Principal Property; provided, however, that the term "Restricted
Subsidiary" shall not include any Subsidiary which is principally
engaged in leasing or in financing receivables, or which is
principally engaged in financing the Company's operations outside
the continental United States of America.
The term "Subsidiary" shall mean any corporation of which
at least a majority of the outstanding stock having the voting
power to elect a majority of the board of directors of such
corporation as at the time is owned,
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directly or indirectly, by the Company or by one or more
Subsidiaries, or by the Company and one or more Subsidiaries.
Defeasance and Discharge of Debt Securities
The Indenture provides that the Company will be discharged
from any and all obligations in respect of any series of Debt
Securities (except for certain obligations to register the
transfer or exchange of such Debt Securities, to replace stolen,
lost or mutilated Debt Securities, to maintain paying agencies
and to hold monies for payment in trust), upon the deposit with
the Trustee, in trust, of money and/or U.S. Government
Obligations (as defined) which through the payment of interest
and principal in respect thereof in accordance with their terms
will provide money in an amount sufficient to pay the principal
of and each installment of interest on such Debt Securities on
the Stated Maturity of such payments in accordance with the terms
of the Indenture and such Debt Securities. Such a trust may be
established only if, among other things, the Company has received
from, or there has been published by, the Internal Revenue
Service a ruling to the effect that Holders of such Debt
Securities will not recognize income, gain or loss for federal
income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to federal income tax on the same
amounts and in the same manner and at the same times, as would
have been the case if such deposit, defeasance and discharge had
not occurred. (Section 403) In the event of any such defeasance
and discharge, the Holders of such Debt Securities would
thereafter be able to look only to such trust fund for payment of
principal (and premium, if any) and interest.
Consolidation, Merger and Sale of Assets
The Company, without the consent of the Holders of any of
the Outstanding Debt Securities under the Indenture, may
consolidate or merge with or into, or transfer or lease its
assets substantially as an entirety to, any corporation or may
acquire or lease the assets of any Person, provided that the
corporation formed by such consolidation or into which the
Company is merged or which acquires or leases the assets of the
Company substantially as an entirety is organized under the laws
of any domestic jurisdiction and assumes the Company's
obligations on the Debt Securities and under the Indenture, that
after giving effect to the transaction no Event of Default, and
no event which, after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be
continuing, and that certain other conditions are met. (Section
801)
LEGAL OPINIONS
The validity of the Debt Securities will be passed upon for
the Company by Gary P. Van Graafeiland, its General Counsel and
Senior Vice President. Certain legal matters will be passed on
for the underwriters and agents by Cleary, Gottlieb, Steen &
Hamilton.
EXPERTS
The consolidated financial statements incorporated in this
Prospectus by reference to the Annual Report on Form 10-K for the
year ended December 31, 1997, as amended, have been so
incorporated in reliance on the report of Price Waterhouse LLP,
independent accountants, given on the authority of said firm as
experts in auditing and accounting.
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities in any of three
ways: (i) through underwriters or dealers; (ii) through agents;
or (iii) directly to investors. The Prospectus Supplement with
respect to each series of Debt Securities will set forth the
terms of the offering of the Debt Securities of such series,
including the name or names of any underwriters, the purchase
price of such Debt Securities, the proceeds to the Company from
such sale, any underwriting discounts and other items
constituting underwriters' compensation, any initial public
offering price, any discounts or concessions allowed or reallowed
or paid to dealers, any securities exchanges on which the Debt
Securities of such series may be listed and any restrictions on
the sale and delivery of such Debt Securities in bearer form, if
applicable.
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If underwriters are used in the sale, the Debt Securities
will be acquired by the underwriters for their own account and
may be resold from time to time in one or more transactions,
including negotiated transactions, at a fixed public offering
price, or at varying prices determined at the time of sale. The
Debt Securities may be offered to the public either through
underwriting syndicates represented by managing underwriters or
by underwriters without a syndicate. Unless otherwise set forth
in the Prospectus Supplement, the obligations of the underwriters
to purchase Debt Securities will be subject to conditions
precedent and the underwriters will be obligated to purchase all
the Debt Securities of a series if any are purchased. Any initial
public offering price and any discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time.
The Debt Securities may be sold directly by the Company or
through agents designated by the Company from time to time. Any
agent involved in the offer or sale of the Debt Securities in
respect of which this Prospectus is delivered will be named, and
any commissions payable by the Company to such agent will be set
forth, in the Prospectus Supplement. Unless otherwise indicated
in the Prospectus Supplement, any such agent will be acting on a
best efforts basis for the period of its appointment.
If so indicated in the Prospectus Supplement, the Company
will authorize agents, underwriters or dealers to solicit offers
by certain specified entities to purchase Debt Securities from
the Company at the public offering price set forth in the
Prospectus Supplement pursuant to delayed delivery contracts
providing for payment and delivery on a specified date or dates.
Such contracts will be subject only to those conditions set forth
in the Prospectus Supplement. The Prospectus Supplement will set
forth the commissions payable for solicitation of such contracts.
Any underwriters, dealers or agents participating in the
distribution of Debt Securities may be deemed to be underwriters
and any discounts or commissions received by them on the sale or
resale of Debt Securities may be deemed to be underwriting
discounts and commissions under the Securities Act. Agents and
underwriters may be entitled under agreements entered into with
the Company to indemnification by the Company against certain
liabilities, including liabilities under the Securities Act, or
to contribution with respect to payments which the agents or
underwriters may be required to make in respect thereof. Agents
and underwriters may be customers of, engage in transactions with
or perform services for the Company or its affiliates in the
ordinary course of business.
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