Registration
No. 333-
As filed
with the Securities and Exchange Commission on December 11, 2015
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
SNAP-ON INCORPORATED
(Exact name of registrant as specified in its charter)
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| Delaware |
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39-0622040 |
| (State or other jurisdiction of |
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(I.R.S. Employer |
| incorporation or organization) |
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Identification Number) |
2801 80th Street
Kenosha, Wisconsin 53143
(262) 656-5200
(Address, including zip code, and telephone number, including area code, of
registrant’s principal executive offices)
Irwin M. Shur
Vice President, General Counsel and Secretary
2801 80th Street, Kenosha, Wisconsin 53143
(262) 656-5200
(Name, address, including zip code, and telephone number, including area code, of agent for service)
with a copy to:
Kenneth V. Hallett
Quarles & Brady LLP
411 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
(414) 277-5000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: FROM TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS
REGISTRATION STATEMENT.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please
check the following box: ¨
If any of the securities being registered on this
Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box: x
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering: ¨
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering:
¨
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box: x
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed
to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box: ¨
Indicate by checkmark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller
reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer x |
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Accelerated filer ¨ |
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Non-accelerated filer ¨ |
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Smaller reporting company ¨ |
CALCULATION OF REGISTRATION FEE
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| Title of Each Class of
Securities to be Registered |
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Amount to be Registered |
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Proposed
Maximum
Offering Price Per Share |
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Proposed
Maximum
Aggregate
Offering Price |
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Amount of
Registration Fee (2) |
| Common Stock,
$1.00 par value |
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| Debt Securities |
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| Debt Warrants |
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(1) |
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(1) |
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(1) |
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(1) |
| Preferred Stock |
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| Preferred Warrants |
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| Common Warrants |
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An indeterminate aggregate initial offering price or number of the securities of each identified class is being registered as may from time to time
be offered at indeterminate prices. Separate consideration may or may not be received for securities that are issuable on exercise, conversion or exchange of other securities or that are issued in units. In accordance with Rules 456(b) and
457(r) of the Securities Act of 1933, as amended (the “Securities Act”), the Registrant is deferring payment of the registration fee. See also Note 2 below. |
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This Registration Statement also includes 156,336 unsold shares of Common Stock, $1.00 par value, of Snap-on Incorporated that were previously
registered pursuant to the Registration Statement on Form S-3 (Commission File No. 333-185480) that was filed on December 14, 2012 (the “Previous Registration Statement”). Pursuant to Rule 415(a)(6) under the Securities Act, the
$1,670.34 filing fee previously paid in connection with such unsold securities will continue to be applied to such unsold securities, and the offering of securities pursuant to the Previous Registration Statement will be deemed terminated as of the
date of effectiveness of this Registration Statement. |
PROSPECTUS
COMMON STOCK
DEBT SECURITIES
DEBT WARRANTS
PREFERRED STOCK
PREFERRED WARRANTS
COMMON WARRANTS
We may offer these securities in amounts, at prices and on terms determined at the time of offering. Each time securities
are sold using this prospectus, we will provide a supplement to this prospectus and possibly other offering material containing specific information about the offering and the terms of the securities being sold. The supplement or other offering
material may add, update or change information contained in this prospectus. Our common stock is traded under the symbol “SNA” on the New York Stock Exchange.
We may offer and sell these securities to or through underwriters, dealers or agents, or directly to investors, on a
continued or a delayed basis. The supplements to this prospectus will provide the specific terms of the plan of distribution.
You should read this prospectus and any supplement carefully before you invest.
See “Risk Factors” in our most recent Annual Report on Form 10-K and in any prospectus supplement, or in such other document we refer you to in any prospectus supplement, for a discussion of
certain risks that prospective investors should consider before investing in our securities.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these
securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this
prospectus is December 11, 2015.
TABLE OF CONTENTS
IMPORTANT NOTICE ABOUT INFORMATION IN THIS PROSPECTUS
This prospectus is a part of the registration statement that we filed with the Securities and Exchange Commission (the
“SEC”). You should read this prospectus together with the more detailed information regarding our company, our securities and our financial statements and notes to those statements that appear elsewhere in this prospectus or that we
incorporate in this prospectus by reference.
You should rely on the information contained in, or incorporated
by reference in, this prospectus and in any prospectus supplement. We have not authorized anyone to provide you with information different from that contained in, or incorporated by reference in, this prospectus, any prospectus supplement or any
other offering material. You should not assume that the information in this prospectus, any prospectus supplement or any other offering material is accurate as of any date other than the respective dates on the front of the prospectus, prospectus
supplement or other offering material, as applicable. For purposes of this prospectus, unless the context otherwise indicates, when we refer to “Snap-on,” “us,” “we,” “our,” “ours,” or the
“Company” we are describing Snap-on Incorporated, including, as appropriate, its subsidiaries.
FORWARD-LOOKING STATEMENTS
Statements in this document, and the documents incorporated by reference,
that are not historical facts, including statements that (i) are in the future tense; (ii) include the words “expects,” “plans,” “targets,” “estimates,” “believes,” “anticipates,”
or similar words that reference Snap-on or its management; (iii) are specifically identified as forward looking; or (iv) describe Snap-on’s or management’s future outlook, plans, estimates, objectives or goals, are
forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. Snap-on cautions the reader that any forward-looking statements included in this document that are based upon assumptions and estimates were
developed by management in good faith and are subject to risks, uncertainties or other factors that could cause (and in some cases have caused) actual results to differ materially from those described in any such statement. Accordingly,
forward-looking statements should not be relied upon as a prediction of actual results or regarded as a representation by the Company or its management that the projected results will be achieved. For those forward-looking statements, Snap-on
cautions the reader that numerous important factors, such as those listed below, as well as those factors discussed in its Annual Report on Form 10-K, for the fiscal year ended January 3, 2015, particularly those in “Part I, Item 1A:
Risk Factors,” as well as in its subsequent filings with the SEC, could affect the Company’s actual results and could cause its actual consolidated results to differ materially from those expressed in any forward-looking statement made by,
or on behalf of, Snap-on.
i
These risks and uncertainties include, without limitation, uncertainties
related to estimates, statements, assumptions and projections generally, and the timing and progress with which Snap-on can attain value through its Snap-on Value Creation Processes, including its ability to realize efficiencies and savings from its
rapid continuous improvement and other cost reduction initiatives, improve workforce productivity, achieve improvements in the Company’s manufacturing footprint and greater efficiencies in its supply chain, and enhance machine maintenance,
plant productivity and manufacturing line set-up and change-over practices, any or all of which could result in production inefficiencies, higher costs and/or lost revenues. These risks also include uncertainties related to Snap-on’s capability
to implement future strategies with respect to its existing businesses, its ability to refine its brand and franchise strategies, retain and attract franchisees, further enhance service and value to franchisees and thereby help improve their sales
and profitability, introduce successful new products, successfully pursue, complete and integrate acquisitions, as well as its ability to withstand disruption arising from natural disasters, planned facility closures or other labor interruptions,
the effects of external negative factors, including adverse developments in world financial markets, weakness in certain areas of the global economy, and significant changes in the current competitive environment, inflation, interest rates and other
monetary and market fluctuations, changes in tax rates and regulations, and the impact of energy and raw material supply and pricing, including steel and gasoline, the amount, rate and growth of Snap-on’s general and administrative expenses,
including health care and postretirement costs (resulting from, among other matters, U.S. health care legislation and its implementation), continuing and potentially increasing required contributions to pension and postretirement plans, the impacts
of non-strategic business and/or product line rationalizations, and the effects on business as a result of new legislation, regulations or government-related developments or issues, risks associated with data security and technological systems and
protections, and other world or local events outside Snap-on’s control, including terrorist disruptions. Snap-on disclaims any responsibility to update any forward-looking statement provided in this document, except as required by law.
In addition, investors should be aware that generally accepted accounting principles in the United States of
America (“U.S. GAAP”) prescribe when a company should reserve for particular risks, including litigation exposures. Accordingly, results for a given reporting period could be significantly affected if and when a reserve is established for
a major contingency. Reported results, therefore, may appear to be volatile in certain accounting periods.
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THE COMPANY
Snap-on was incorporated under the laws of the state of Wisconsin in 1920 and reincorporated under the laws of the state
of Delaware in 1930. Snap-on is a leading global innovator, manufacturer and marketer of tools, equipment, diagnostics, repair information and systems solutions for professional users performing critical tasks. Products and services include hand and
power tools, tool storage, diagnostics software, information and management systems, shop equipment and other solutions for vehicle dealerships and repair centers, as well as for customers in industries, including aviation and aerospace,
agriculture, construction, government and military, mining, natural resources, power generation and technical education. Snap-on also derives income from various financing programs designed to facilitate the sales of its products.
Snap-on markets its products and brands through multiple sales distribution channels in more than 130 countries.
Snap-on’s largest geographic markets include the United States, the United Kingdom, Canada, Germany, Australia, Japan, France, Italy, Sweden, Spain, China, Brazil, the Netherlands, Saudi Arabia, Mexico, Argentina, Denmark, Norway, India, the
Russian Federation, Finland and Indonesia. Snap-on reaches its customers through the Company’s franchisee, Company-direct, distributor and internet channels. Snap-on originated the mobile tool distribution channel in the automotive repair
market.
Snap-on’s primary customer segments include: (i) commercial and industrial customers,
including professionals in critical industries and emerging markets; (ii) professional vehicle repair technicians who purchase products through the Company’s worldwide mobile tool distribution network; and (iii) other professional
customers related to vehicle repair, including owners and managers of independent and original equipment manufacturer (“OEM”) dealership service and repair shops (“OEM dealerships”). Snap-on’s Financial Services customer
segment includes: (i) franchisees’ customers and Snap-on’s industrial and other customers who require financing for the purchase or lease of tools and diagnostics and equipment products on an extended-term payment plan; and
(ii) franchisees who require financing for business loans and vehicle leases.
Snap-on’s business
segments are based on the organization structure used by management for making operating and investment decisions and for assessing performance. Snap-on’s reportable business segments are: (i) the Commercial & Industrial Group;
(ii) the Snap-on Tools Group; (iii) the Repair Systems & Information Group; and (iv) Financial Services. The Commercial & Industrial Group consists of business operations serving a broad range of industrial and
commercial customers worldwide, including customers in the aerospace, natural resources, government and technical education market segments (collectively, “critical industries”), primarily through direct and distributor channels. The
Snap-on Tools Group consists of business operations primarily serving vehicle service and repair technicians through the Company’s worldwide mobile tool distribution channel. The Repair Systems & Information Group consists of business
operations serving other professional vehicle repair customers worldwide, primarily owners and managers of independent repair shops and OEM dealerships, through direct and distributor channels. Financial Services consists of the business operations
of Snap-on Credit LLC (“SOC”), the Company’s financial services business in the United States, and Snap-on’s other financial services subsidiaries in those international markets where Snap-on has franchise operations.
Snap-on’s headquarters is located at 2801 80th Street, Kenosha, Wisconsin 53143, and the Company’s telephone
number is (262) 656-5200.
USE OF PROCEEDS
We intend to use the net proceeds from the sales of the securities as set forth in the applicable prospectus supplement
and/or other offering material.
RATIO OF EARNINGS TO FIXED CHARGES
Snap-on’s ratio of earnings to fixed charges for each of the periods indicated is included in the table below:
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Nine Months Ended |
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Fiscal Year |
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October 3,
2015 |
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September 27,
2014 |
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2014 |
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2013 |
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2012 |
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2011 |
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2010 |
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13.8 |
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12.3 |
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12.5 |
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10.1 |
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9.0 |
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7.6 |
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5.9 |
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1
SECURITIES TO BE OFFERED
This prospectus is part of a registration statement that we filed with the SEC utilizing a “shelf” registration
process. Under this shelf registration process, we may offer and sell from time to time securities in one or more offerings. We may offer and sell the following securities: common stock, debt securities, debt warrants, preferred stock,
preferred warrants and common warrants. This prospectus provides you with a general description of these securities.
Each time we offer securities, we will provide you with a prospectus supplement and possibly other offering material that will describe the specific amounts, prices and terms of the securities being
offered. The prospectus supplement or other offering material may also add, update or change information contained in this prospectus.
DESCRIPTION OF COMMON STOCK
We
are authorized by our restated certificate of incorporation to issue up to 250,000,000 shares of common stock, par value $1.00 per share. As of December 1, 2015, 58,046,108 shares were outstanding.
The description of our common stock included in Amendment No. 1 to our Registration Statement on Form 8-A/A, dated
October 14, 2009 (File No. 1-7724), is incorporated by reference herein.
DESCRIPTION OF
DEBT SECURITIES
The following description of the debt securities sets forth the material 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 the provisions described in this prospectus may apply
to the offered debt securities will be described in the prospectus supplement and/or other offering material relating to the offered debt securities.
Senior debt securities would be issued under the indenture, dated January 8, 2007, between Snap-on and U.S. Bank National Association, as trustee, which is incorporated by reference as an exhibit to
the registration statement of which this prospectus is a part. The indenture relating to the senior debt securities, as amended or otherwise supplemented by any supplemental indentures, is referred to in this prospectus as the “indenture.”
The following summaries of the material provisions of the indenture and the debt securities do not purport to
be complete and are subject to, and are qualified in their entirety by reference to, all of the provisions of the indenture, including the definitions of specified terms used in the indenture, and the debt securities. Wherever particular articles,
sections or defined terms of an indenture are referred to, it is intended that those articles, sections or defined terms will be incorporated herein by reference, and the statement in connection with which reference is made is qualified in its
entirety by the article, section or defined term in the indenture.
General
The indenture does not limit the amount of debt, either secured or unsecured, that we may issue under the indenture or
otherwise. The debt securities may be issued in one or more series with the same or various maturities and may be sold at par, at a premium or at an original issue discount. Some of the debt securities may be issued under the indenture as original
issue discount securities to be sold at a substantial discount below their principal amount. Federal income tax and other considerations applicable to any original issue discount securities will be described in the related prospectus supplement. We
have the right to “reopen” a previous issue of a series of debt by issuing additional debt securities of such series.
Snap-on conducts a material amount of its operations through subsidiaries and it expects that it will continue to do so. As a result, the right of Snap-on to participate as a shareholder in any
distribution of assets of any subsidiary upon its liquidation or reorganization or otherwise and the ability of holders of the notes to benefit as creditors of Snap-on from any distribution are subject to prior claims of creditors of the subsidiary.
The notes will also effectively rank junior in right of payment to any secured debt of Snap-on.
The prospectus
supplement relating to the particular debt securities offered thereby will describe the following terms of the offered debt securities:
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the title of the offered debt securities; |
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any limit upon the aggregate principal amount of the offered debt securities; |
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the date or dates (or the manner of calculation thereof) on which the principal of the offered debt securities is payable;
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the rate or rates (or the manner of calculation thereof) at which the offered debt securities shall bear interest, if any, the date or dates from
which such interest shall accrue, the interest payment dates on which such interest shall be payable and the regular record date for the interest payable on any interest payment date; |
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the place or places where the principal of and premium, if any, and interest, if any, on the offered debt securities will be payable and each office
or agency where the offered debt securities may be presented for transfer or exchange; |
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the period or periods within which, the price or prices at which, the currency or currency units in which, and the terms and conditions upon which
the offered debt securities may be redeemed, in whole or in part, at our option; |
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our obligation, if any, to redeem or purchase the offered debt securities pursuant to any sinking fund or analogous provisions or at the option of a
holder thereof and the period or periods within which, the price or prices in the currency at which, the currency or currency units in which, and the terms and conditions upon which the offered debt securities shall be redeemed or purchased, in
whole or in part, pursuant to such obligation; |
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the denominations in which the offered debt securities shall be issuable if other than denominations of $1,000 and any integral multiple thereof;
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the application, if any, of certain provisions of the indenture relating to discharge and defeasance described in this prospectus with respect to
the offered debt securities; |
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if other than the currency of the United States of America, the currencies in which payments of interest or principal of (and premium, if any, with
respect to) the offered debt securities are to be made; |
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if the interest on or principal of (or premium, if any, with respect to) the offered debt securities are to be payable, at our election or at the
election of a holder thereof or otherwise, in a currency other than that in which such offered debt securities are payable, the period or periods within which, and the other terms and conditions upon which, such election may be made, and the time
and manner of determining the exchange rate between the currency in such offered debt securities are denominated or stated to be payable and the currency in which such offered debt securities or any of them are to be so payable;
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whether the amount of payments of interest on or principal of (or premium, if any, with respect to) the offered debt securities of such series may
be determined with reference to an index, formula or other method (which index, formula or method may be based, without limitation, on one or more currencies, commodities, equity indices or other indices), and, if so, the terms and conditions upon
which and the manner in which such amounts shall be determined and paid or payable; |
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the extent to which any offered debt securities will be issuable in permanent global form, the manner in which any payments on a permanent global
debt security will be made, and the appointment of any depository relating thereto; |
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any deletions from, modifications of or additions to the events of default or covenants with respect to the offered debt securities of such series,
whether or not such events of default or covenants are consistent with the events of default or covenants set forth herein; |
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whether any of the offered debt securities are to be issuable upon the exercise of warrants, and, if so, the time, manner and place for such offered
debt securities to be authenticated and delivered; and |
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any other terms of the series (which terms shall not be inconsistent with the provisions of the indenture). |
Unless otherwise indicated in any prospectus supplement, principal of and premium, if any, and interest, if any, on the
offered debt securities will be payable, and transfers of the offered debt securities will be registerable, at the corporate trust office of the trustee. Alternatively, at our option, payment of interest may be made by check mailed to the address of
the person entitled thereto as it appears in the debt security register.
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Floating Rate Notes
Floating rate notes issued under the indenture will bear interest at a floating interest rate. Interest payable on any
interest payment date or on the date of maturity will be the amount of interest accrued from and including the date of original issuance or from and including the most recent interest payment date on which interest has been paid or duly made
available for payment to but excluding the interest payment date or the date of maturity, as the case may be.
The interest rate for the initial interest period will be the three-month London Interbank Offered Rate
(“LIBOR”), determined as described below as of the applicable determination date, plus a number of basis points to be described in the related prospectus supplement. The interest rate on floating rate notes for each subsequent interest
period will be reset quarterly on each interest payment date. Floating rate notes will bear interest at an annual rate (computed on the basis of the actual number of days elapsed over a 360-day year) equal to LIBOR plus a number of basis points to
be described in the related prospectus supplement.
The interest rate in effect for floating rate notes on each
day will be (a) if that day is an interest reset date, the interest rate determined as of the determination date (as defined below) immediately preceding such interest reset date, or (b) if that day is not an interest reset date, the
interest rate determined as of the determination date immediately preceding the most recent interest reset date. The determination date will be the second London Business Day immediately preceding the applicable interest reset date.
The calculation agent will be the trustee initially. LIBOR will be determined by the calculation agent as of the
applicable determination date in accordance with the following provisions:
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LIBOR will be determined on the basis of the offered rates for deposits in U.S. dollars of not less than U.S. $1,000,000 having a three-month
maturity, beginning on the second London Business Day immediately following that determination date, which appears on Reuters Page LIBOR01 (as defined below) as of approximately 11:00 a.m., London time, on that determination date. “Reuters
Page LIBOR01” means the display designated on page “LIBOR01” on Reuters (or such other page as may replace the page on that service, any successor service or such other service or services as may be nominated by the
British Bankers’ Association for the purpose of displaying London interbank offered rates for U.S. dollar deposits). If no rate appears on Reuters Page LIBOR01, LIBOR for such determination date will be determined in accordance with the
provisions of the next paragraph. |
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With respect to a determination date on which no rate appears on Reuters Page LIBOR01 as of approximately 11:00 a.m., London time, on that
determination date, the calculation agent will request the principal London office of each of four major reference banks (which may include an affiliate of one or more underwriters) in the London interbank market selected by the calculation agent
(after consultation with us) to provide the calculation agent with a quotation of the rate at which deposits of U.S. dollars having a three-month maturity, beginning on the second London Business Day immediately following that determination date,
are offered by it to prime banks in the London interbank market as of approximately 11:00 a.m., London time, on that determination date in a principal amount equal to an amount of not less than U.S. $1,000,000 that is representative for a
single transaction in that market at that time. If at least two quotations are provided, LIBOR for that determination date will be the arithmetic mean of the quotations as calculated by the calculation agent. If fewer than two quotations are
provided, LIBOR for that determination date will be the arithmetic mean of the rates quoted as of approximately 11:00 a.m., New York City time, on that determination date by three major banks selected by the calculation agent (after
consultation with us) for loans in U.S. dollars to leading European banks having a three-month maturity beginning on the second London Business Day immediately following that determination date and in a principal amount equal to an amount of not
less than U.S. $1,000,000 that is representative for a single transaction in that market at that time; provided, however, if the banks selected by the calculation agent are not quoting the rates described in this sentence, LIBOR for that
determination date will be LIBOR determined with respect to the immediately preceding determination date, or in the case of the first determination date, LIBOR for the initial interest period. |
4
If the date of maturity of any floating rate notes falls on a day that is
not a LIBOR Business Day, the related payment of principal and interest will be made on the next LIBOR Business Day as if it were made on the date such payment was due, and no interest will accrue on the amounts so payable for the period from and
after such date to the next LIBOR Business Day. If any interest reset date or interest payment date (other than at the date of maturity) would otherwise be a day that is not a LIBOR Business Day, that interest reset date and interest payment date
will be postponed to the next date that is a LIBOR Business Day, except that if such LIBOR Business Day is in the next calendar month, such interest reset date and interest payment date (other than at the date of maturity) shall be the immediately
preceding LIBOR Business Day.
“LIBOR Business Day” means any day other than Saturday or Sunday or a
day on which banking institutions or trust companies in the City of New York are required or authorized to close and that is also a London Business Day.
“London Business Day” means any day on which dealings in deposits in U.S. dollars are transacted in the London interbank market.
Fixed Rate Notes
Fixed rate notes will bear interest at a fixed interest rate as set forth in the applicable supplemental indenture, prospectus supplement or other document or agreement that may be executed from time to
time. Unless set forth in such other agreement, the interest payable on any interest payment date or on the date of maturity will be the amount of interest accrued from and including the date of original issuance or from and including the most
recent interest payment date on which interest has been paid or duly made available for payment to but excluding the interest payment date or the date of maturity, as the case may be.
Optional Redemption
Floating Rate Notes
All or a portion of floating rate notes may be redeemed at our option at any time or from time to time, after a set date
to be identified in the applicable prospectus supplement. The redemption price of floating rate notes will be 100% of the principal amount thereof plus accrued and unpaid interest thereon to the redemption date.
Notwithstanding the foregoing, installments of interest on any floating rate notes that are due and payable on interest
payment dates falling on or prior to a redemption date will be payable on the interest payment date to the registered holders as of the close of business on the relevant record date according to such floating rate notes and the indenture. The
redemption price will be calculated on the basis of a 360-day year consisting of twelve 30-day months.
We will
mail notice of any redemption at least 30 days but not more than 60 days before the redemption date to each registered holder of floating rate notes. Once notice of redemption is mailed, floating rate notes will become due and payable on the
redemption date and at the applicable redemption price, plus accrued and unpaid interest to the redemption date.
On and after the redemption date, interest will cease to accrue on floating rate notes or any portion of floating rate
notes called for redemption (unless we default in the payment of the redemption price and accrued interest). On or before the redemption date, we will deposit with a paying agent (or the trustee) money sufficient to pay the redemption price of and
accrued interest on any floating rate notes to be redeemed on that date. If less than all of any floating rate notes are to be redeemed, any floating rate notes to be redeemed shall be selected by lot by The Depository Trust Company
(“DTC”), in the case of floating rate notes represented by a global security, or by the trustee by a method the trustee deems to be fair and appropriate, in the case of floating rate notes that are not represented by a global security.
Fixed Rate Notes
All or a portion of fixed rate notes may be redeemed at our option at any time or from time to time. The redemption price for any fixed rate notes to be redeemed on any redemption date will be equal to
the greater of the following amounts (plus, in each case, accrued and unpaid interest on such fixed rate notes to the redemption date):
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100% of the principal amount of the fixed rate notes being redeemed on the redemption date; and |
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the sum of the present values of the remaining scheduled payments of principal and interest on the fixed rate notes being redeemed on that
redemption date (not including any portion of any payments of interest accrued to the redemption date), discounted to the redemption date on a semiannual basis at the Treasury Rate (as defined below), plus a set number of basis points to be
identified in the applicable prospectus supplement, as determined by the Reference Treasury Dealer (as defined below). |
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Notwithstanding the foregoing, installments of interest on fixed rate notes that are due and
payable on interest payment dates falling on or prior to a redemption date will be payable on the interest payment date to the registered holders as of the close of business on the relevant record date according to the fixed rate notes and the
indenture. The redemption price will be calculated on the basis of a 360-day year consisting of twelve 30-day months.
We will mail notice of any redemption at least 30 days but not more than 60 days before the redemption date to each registered holder of such fixed rate notes. Once notice of redemption is mailed, fixed
rate notes will become due and payable on the redemption date and at the applicable redemption price, plus accrued and unpaid interest to the redemption date.
“Treasury Rate” means, with respect to any redemption date, the rate per annum equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date.
“Comparable Treasury Issue” means the United States Treasury security selected by the Reference Treasury Dealer as having a maturity comparable to the remaining term of fixed rate notes, at the
time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of fixed rate notes.
“Comparable Treasury Price” means, with respect to any redemption date, (a) the average of the Reference
Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (b) if the trustee obtains fewer than three such Reference Treasury Dealer Quotations, the average of all
such Quotations, or (c) if only one Reference Treasury Dealer Quotation is received, such Quotation.
“Reference Treasury Dealer” means any primary U.S. Government securities dealer in New York City (a
“Primary Treasury Dealer”) that is selected by us.
“Reference Treasury Dealer Quotation”
means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the trustee, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the trustee by such Reference Treasury Dealer at 5:00 p.m. (New York City time) on the third business day preceding such redemption date.
On and after the redemption date, interest will cease to accrue on fixed rate notes or any portion of such fixed rate
notes called for redemption (unless we default in the payment of the redemption price and accrued interest). On or before the redemption date, we will deposit with a paying agent (or the trustee) money sufficient to pay the redemption price of and
accrued interest on fixed rate notes to be redeemed on that date. If less than all of any fixed rate notes are to be redeemed, any fixed rate notes to be redeemed shall be selected by lot by DTC, in the case of fixed rate notes represented by a
global security, or by the trustee by a method the trustee deems to be fair and appropriate, in the case of fixed rate notes that are not represented by a global security.
Denominations, Registration and Transfer
Unless otherwise
indicated in any prospectus supplement, the offered debt securities will be issued only in fully registered form without coupons in denominations of $1,000 or any integral multiple of $1,000, or the equivalent in foreign currency. No service charge
will be made for any registration of transfer or exchange of offered debt securities, but we may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection with any transfer or exchange.
If the purchase price of any of the offered debt securities is denominated in a foreign currency or currencies or foreign
currency unit or units or if the principal of, premium, if any, or interest, if any, on any series of offered debt securities is payable in a foreign currency or currencies or foreign currency unit or units, the restrictions, elections, tax
consequences, specific terms and other information with respect to the issue of offered debt securities and the foreign currency or currencies or foreign currency unit or units will be described in the related prospectus supplement.
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We will not be required to issue, register the transfer of, or exchange debt
securities of any series during the period from 15 days prior to the mailing of a notice of redemption of debt securities of that series to the date the notice is mailed. We will also not be required to register the transfer of or exchange any debt
security so selected for redemption, except the unredeemed portion of any debt security being redeemed in part.
Conversion and Exchange
The terms, if any, on which debt securities of any series are convertible into or exchangeable for common
stock or preferred stock, property or cash, or a combination of any of the foregoing, will be set forth in the related prospectus supplement. Terms may include provisions for conversion or exchange that is either mandatory, at the option of the
holder, or at our option. The number of shares of common stock or preferred stock to be received by the holders of the debt securities will be calculated in the manner, according to the factors and at the time as described in the related prospectus
supplement.
Covenants Applicable to Senior Debt Securities
Limitations on Secured Debt
We may not, and may not permit
our restricted subsidiaries to, create, assume, or guarantee any indebtedness secured by mortgages, pledges, liens, encumbrances, conditional sale or title retention agreements (excluding operating leases) or other security interests, which we refer
to collectively as security interests, on any of our principal properties or any shares of capital stock or indebtedness of any of our restricted subsidiaries without making effective provision for securing the senior debt securities offered under
this prospectus and any prospectus supplement equally and ratably with the secured debt. Notwithstanding this limitation on secured debt, we and our restricted subsidiaries may have debt secured by:
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(a) any security interest on any property hereafter acquired or constructed by us or a restricted subsidiary to secure or provide for the payment of
all or any part of the purchase price or construction cost of such property, including, but not limited to, any indebtedness incurred by us or a restricted subsidiary prior to, at the time of, or within 180 days after the later of the acquisition,
the completion of construction (including any improvements on an existing property) or the commencement of commercial operation of such property, which indebtedness is incurred for the purpose of financing all or any part of the purchase price
thereof or construction or improvements thereon; or (b) the acquisition of property subject to any security interest upon such property existing at the time of acquisition thereof, whether or not assumed by us or such restricted subsidiary; or
(c) any security interest existing on the property or on the outstanding shares of capital stock or indebtedness of a person at the time such person shall become a restricted subsidiary; or (d) a security interest on property or shares of
capital stock or indebtedness of a person existing at the time such person is merged into or consolidated with us or a restricted subsidiary or at the time of a sale, lease or other disposition of the properties of a person or firm as an entirety or
substantially as an entirety to us or a restricted subsidiary, provided, however, that no such security interest shall extend to any other principal property of ours or such restricted subsidiary prior to such acquisition or to the other principal
property thereafter acquired other than additions to such acquired property; |
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security interests in property of ours or a restricted subsidiary in favor of the United States of America or any State thereof, or any department,
agency or instrumentality or political subdivision of the United States of America or any State thereof, or in favor of any other country, or any department, agency or instrumentality or political subdivision thereof (including, without limitation,
security interests to secure indebtedness of the pollution control or industrial revenue bond type), in order to permit us or a restricted subsidiary to perform any contract or subcontract made by it with or at the request of any of the foregoing,
or to secure partial, progress, advance or other payments pursuant to any contract or statute or to secure any indebtedness incurred for the purpose of financing all or any part of the purchase price or the cost of constructing or improving the
property subject to such security interests; |
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any security interest on any property or assets of any restricted subsidiary to secure indebtedness owing by it to us or to a restricted subsidiary;
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any security interest on any property or assets of ours to secure indebtedness owing by us to any restricted subsidiary;
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mechanics’, materialmen’s, carriers’ or other like liens arising in the ordinary course of business (including construction of
facilities) in respect of obligations which are not due or which are being contested in good faith; |
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any security interest arising by reason of deposits with, or the giving of any form of security to, any governmental agency or any body created or
approved by law or governmental regulations, which is required by law or governmental regulation as a condition to the transaction of any business, or the exercise of any privilege, franchise or license and any security interest to secure public or
statutory obligations; |
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security interests for taxes, assessments or governmental charges or levies not yet delinquent, or the security interests for taxes, assessments or
government charges or levies already delinquent but the validity of which is being contested in good faith; |
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security interests (including judgment liens) arising in connection with legal proceedings so long as such proceedings are being contested in good
faith and, in the case of judgment liens, execution thereon is stayed; |
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landlords’ liens on fixtures located on premises leased by us or a restricted subsidiary in the ordinary course of business;
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security interests in connection with certain permitted receivables financings; or |
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any extension, renewal or replacement (or successive extensions, renewals or replacements) in whole or in part of any security interest permitted by
the indenture. |
Limitation on Sale and Leaseback Transactions
We and our restricted subsidiaries may not engage in sale and leaseback transactions (excluding such transactions between
us and our restricted subsidiaries or between our restricted subsidiaries) whereby a principal property that is owned by us or one of our restricted subsidiaries and that has been in full operation for more than 180 days is sold or transferred with
the intention of taking back a lease of such property (except a lease for a term of no more than three years entered into with the intent that the use by us or such restricted subsidiary of such property will be discontinued on or before the
expiration of such term).
The sale and leaseback of a principal property is not prohibited, however, if we and
the applicable restricted subsidiary would be permitted under the indenture to incur secured debt equal in amount to the amount realized or to be realized upon the sale or transfer secured by a lien on the principal property to be leased without
equally and ratably securing the senior debt securities. We and our restricted subsidiaries may also engage in an otherwise prohibited sale and leaseback transaction if an amount equal to the value of the principal property so leased is applied,
subject to credits for delivery by us to the trustee of senior debt securities we have previously purchased or otherwise acquired and specified voluntary redemptions of the senior debt securities, to the retirement (other than mandatory retirement),
within 120 days of the effective date of the arrangement, of specified indebtedness for borrowed money incurred or assumed by us or a restricted subsidiary, as shown on our most recent consolidated balance sheet and, in the case of our indebtedness,
the indebtedness is not subordinate and junior in right of payment to the prior payment of the senior debt securities.
Permitted Secured
Debt
Notwithstanding the limitations on secured debt and sale and leaseback transactions described in this
prospectus, we and our restricted subsidiaries may, without securing the senior debt securities, issue, assume or guarantee secured debt which would otherwise be subject to the foregoing restrictions, provided that after giving effect to any secured
debt permitted by this exception, the aggregate amount of our secured debt and that of our restricted subsidiaries then outstanding (excluding indebtedness secured by the types of security interests listed above under the heading “Limitations
on Secured Debt”) and the aggregate value of sale and leaseback transactions, other than sale and leaseback transactions in connection with which indebtedness has been, or will be, retired in accordance with the preceding paragraph, at such
time does not exceed 10% of our consolidated stockholders’ equity.
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For purposes of determining the amount of secured debt permitted by the
exception described in the paragraph above, “consolidated stockholders’ equity” means, at any date, our stockholders’ equity and that of our consolidated subsidiaries determined on a consolidated basis as of such date in
accordance with generally accepted accounting principles; provided that, our consolidated stockholders’ equity and that of our consolidated subsidiaries is to be calculated without giving effect to (i) the application of Accounting
Standards Codification Topic 715 relating to postretirement benefits and pension plans, or (ii) the cumulative foreign currency translation adjustment. The term “consolidated subsidiary” means, as to any person, each subsidiary of
such person (whether now existing or hereafter created or acquired) the financial statements of which shall be (or should have been) consolidated with the financial statements of such person in accordance with generally accepted accounting
principles.
Restrictions on Transfer of Principal Properties to Specified Subsidiaries
The indenture provides that, so long as the senior debt securities of any series are outstanding, we will not, and will
not cause or permit any restricted subsidiary to, transfer any principal property to any unrestricted subsidiary, unless such subsidiary shall apply within one year after the effective date of the transaction, or shall have committed within one year
of the effective date to apply, an amount equal to the fair value of the principal property at the time of transfer:
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to the acquisition, construction, development or improvement of properties or facilities which are, or upon the acquisition, construction,
development or improvement will be, a principal property or properties or a part thereof; |
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to the redemption of senior debt securities; |
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to the repayment of indebtedness of us or any of our restricted subsidiaries for money borrowed having a maturity of more than 12 months from the
date of our most recent consolidated balance sheet, other than any indebtedness owed to any restricted subsidiary; or |
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in part, to an acquisition, construction, development or improvement, and in part, to redemption and/or repayment, in each case as described above.
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The fair value of any principal property for purposes of this paragraph will be as determined by our board
of directors. In lieu of applying all or any part of any amount to the redemption of senior debt securities, we may, within one year of the transfer, deliver to the trustee under the indenture senior debt securities of any series (other than senior
debt securities made the basis of a reduction in a mandatory sinking fund payment) for cancellation and thereby reduce the amount to be applied to the redemption of senior debt securities by an amount equivalent to the aggregate principal amount of
the senior debt securities so delivered.
Certain Definitions
The following are the meanings of terms that are important in understanding the covenants previously described:
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“principal property” means any manufacturing plant, office building or similar facility (including associated fixtures but excluding
leases and other contract rights that might otherwise be deemed real property) owned by us or any restricted subsidiary, whether owned on the date hereof or thereafter, provided each such plant, office building or similar facility has a gross book
value (without deduction for any depreciation reserves) at the date as of which the determination is being made of in excess of five percent of the consolidated net tangible assets of us and the restricted subsidiaries and is located in the United
States of America, Canada or the Commonwealth of Puerto Rico, other than any such plant, office building or similar facility or portion thereof which, in the opinion of the board of directors (evidenced by a certified board resolution thereof
delivered to the Trustee), is not of material importance to the business conducted by us and our restricted subsidiaries taken as a whole; |
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“restricted subsidiary” means any subsidiary of the Company that is not an unrestricted subsidiary; |
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“secured debt” means indebtedness for money borrowed and any debt which is secured by a security interest in (a) any principal
property or (b) any shares of capital stock or indebtedness of any restricted subsidiary; |
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“subsidiary” means any person of which we, or we and one or more of our subsidiaries, or any one or more subsidiaries, directly or
indirectly own more than 50% of the voting stock of such person; and |
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“unrestricted subsidiary” means (a) any subsidiary of ours that at the time of determination shall be designated an unrestricted
subsidiary by the board of directors (provided, however, that any subsidiary of ours having, as of the end of our most recently completed fiscal year, (i) assets with a value in excess of 5% of the total value of the assets of us
and our subsidiaries taken as a whole, or (ii) gross revenue in excess of 5% of our total (gross) revenue and of our subsidiaries taken as a whole, may not be designated as an unrestricted subsidiary under the indenture); and (b) any
subsidiary of an unrestricted subsidiary. |
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Merger
The indenture provides that we may, without the consent of the holders of debt securities, consolidate with, or sell, lease or convey all or substantially all of our assets to, or merge into any other
person, provided that:
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the successor person is a person organized and existing under the laws of the United States or a state thereof; |
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the successor person expressly assumes the due and punctual payment of the principal of and premium, if any, and interest on all debt securities,
according to their tenor, and the due and punctual performance and observance of all the covenants and conditions of the indenture to be performed by us by supplemental indenture satisfactory to the trustee, executed and delivered to the trustee by
the successor corporation; and |
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immediately after giving effect to the transaction, no default under the indenture has occurred and is continuing. |
In addition, we must provide to the trustee an opinion of legal counsel that any such transaction and any assumption by a
successor person complies with the applicable provisions of the indenture and that we have complied with all conditions precedent provided in the indenture relating to such transaction.
Other than the covenants described above, or as set forth in any accompanying prospectus supplement, the indenture
contains no covenants or other provisions designed to afford holders of the debt securities protection in the event of a takeover, recapitalization or a highly leveraged transaction involving us.
Modification of the Indenture
With the consent of the holders of more than 50% in aggregate principal amount of any series of debt securities then outstanding under the indenture, waivers, modifications and alterations of the terms of
either indenture may be made which affect the rights of the holders of the series of debt securities. However, no modification or alteration may be made which will:
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extend the fixed maturity of any debt security, or reduce the rate or extend the time of payment of interest thereon, or reduce the principal amount
thereof or any premium thereon, or make the principal thereof or interest or premium thereon payable in any coin or currency other than that provided in the debt securities, without the consent of the holder of each outstanding debt security
affected thereby; or |
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without the consent of all of the holders of any series of debt securities then outstanding affected thereby, reduce the percentage of debt
securities of that series, the holders of which are required to consent to: |
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any supplemental indenture; |
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rescind and annul a declaration that the debt securities of any series are due and payable as a result of the occurrence of an event of default;
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waive any past event of default under the indenture and its consequences; and |
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waive compliance with other specified provisions of the indenture. |
In addition, as described in the description of “Events of Default” set forth below, holders of more than 50% in
aggregate principal amount of the debt securities of any series then outstanding may waive past events of default in specified circumstances and may direct the trustee in enforcement of remedies.
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We and the trustee may, without the consent of any holders, modify and
supplement the indenture:
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to evidence the succession of another person to us under the indenture, or successive successions, and the assumption by the successor person of the
covenants, agreements and obligations of us pursuant to specified provisions of the indenture; |
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to add to the covenants of us such further covenants, restrictions, conditions or provisions as our board of directors and the trustee shall
consider to be for the protection of the holders of debt securities of any or all series, and to make the occurrence, or the occurrence and continuance, of a default in any of such additional covenants, restrictions, conditions or provisions a
default or event of default with respect to such series permitting the enforcement of all or any of the several remedies provided in the indenture; provided, however, that in respect of any such additional covenant, restriction or condition, such
supplemental indenture may provide for a particular period of grace after default (which period may be shorter or longer than that allowed in the case of other defaults) or may provide for an immediate enforcement upon such default or may limit the
remedies available to the trustee upon such default; |
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to modify the indenture to permit the qualification of any supplemental indenture under the Trust Indenture Act of 1939;
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to cure any ambiguity or to correct or supplement any provision contained in the indenture or in any supplemental indenture which may be defective
or inconsistent with any other provision contained in the indenture or in any supplemental indenture; to convey, transfer, assign, mortgage or pledge any property to or with the trustee; or to make such other provisions in regard to matters or
questions arising under the indenture as shall not adversely affect the interests of the holders; |
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to secure the debt securities of all series in accordance with the indenture; |
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to evidence and provide for the acceptance of appointment by another corporation as a successor trustee under the indenture with respect to one or
more series of debt securities and to add to or change any of the provisions of the indenture as shall be necessary to provide for or facilitate the administration of the trusts under the indenture by more than one trustee;
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to provide for the issuance under the indenture of debt securities in coupon form (including debt securities registrable as to principal only) and
to provide for exchangeability of such debt securities with debt securities of the same series issued hereunder in fully registered form and to make all appropriate changes for such purpose; |
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to change or eliminate any of the provisions of the indenture, provided, however, that any such change or elimination shall become effective
only when there is no debt security outstanding of any series created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision; and |
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to establish any additional form of debt security, as permitted by the indenture, and to provide for the issuance of any additional series of debt
securities, as permitted by the indenture. |
Defeasance, Satisfaction and Discharge to Maturity or Redemption
Defeasance of any Series
If we deposit with the trustee, in trust, at or before maturity or redemption, (a) lawful money in an amount, (b) direct obligations of the United States, or of any other government which issued
the currency in which the debt securities of a series are denominated, or obligations which are guaranteed by the United States or the other government (which direct or guaranteed obligations are full faith and credit obligations of such government,
are denominated in the currency in which the debt securities of such are denominated and which are not callable or redeemable at the option of the issuer there) in an amount and with a maturity so that the proceeds therefrom will provide funds, or
(c) a combination thereof in an amount, sufficient, in the opinion of a nationally-recognized firm of independent public accountants, to pay when due the principal, premium, if any, and interest to maturity or to the redemption date, as the
case may be, with respect to any series of debt securities then outstanding, and any mandatory sinking fund payments or similar payments or payment pursuant to any call for redemption applicable to such debt securities of such series on the day on
which such payments are due and payable in accordance with the terms of the indenture and such debt securities, then the provisions of the indenture would no longer be effective as to the debt securities to which such deposit relates, including the
restrictive covenants described in this prospectus and events of default relating to the payment of other indebtedness and the performance of covenants that are not specifically described as events of default in the indenture, except as to:
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our obligation to duly and punctually pay the principal of and premium, if any, and interest on the series of debt securities if the debt securities
are not paid from the money or securities held by the trustee; |
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certain of the events of default described under “Events of Default” below; and |
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other specified provisions of the indenture including, among others, those relating to registration, transfer and exchange, lost or stolen
securities, maintenance of place of payment and, to the extent applicable to the series, the redemption and sinking fund provisions of the indenture. |
Defeasance of debt securities of any series is subject to the satisfaction of specified conditions, including, among
others, the absence of an event of default at the date of the deposit and the perfection of the holders’ security interest in the deposit.
Satisfaction and Discharge of any Series
Upon the deposit of money or securities contemplated above and the satisfaction of specified conditions, the provisions of the indenture (excluding the exceptions discussed above under the heading
“Defeasance of any Series”) would no longer be effective as to the related debt securities, we may cease to comply with our obligation to pay duly and punctually the principal of and premium, if any, and interest on a particular series of
debt securities, the events of default in the indenture no longer would be effective as to such debt securities and thereafter the holders of the series of debt securities will be entitled only to payment out of the money or securities deposited
with the trustee.
The specified conditions include, among others, except in limited circumstances involving a
deposit made within one year of maturity or redemption:
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the absence of an event of default at the date of deposit or on the 91st day thereafter; |
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our delivery to the trustee of an opinion of nationally-recognized tax counsel, or our receipt or publication of a ruling by the Internal Revenue
Service, to the effect that holders of the debt securities of the series will not recognize income, gain or loss for federal income tax purposes as a result of the deposit and discharge, and the holders 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 the deposit and discharge had not occurred; and |
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that we receive an opinion of counsel to the effect that the satisfaction and discharge will not result in the delisting of the debt securities of
that series from any nationally-recognized exchange on which they are listed. |
Events of Default
As to any series of debt securities, an event of default is defined in the indenture as being:
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default for 30 days in payment of any interest on the debt securities of that series; |
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failure to pay principal or premium, if any, with respect to the debt securities of that series when due; |
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failure to pay or satisfy any sinking fund payment or similar obligation with respect to any series of debt securities when due;
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failure to observe or perform any other covenant, warranty or agreement in the indenture or debt securities of any series, other than a covenant,
warranty or agreement, a default in whose performance or whose breach is specifically dealt with in the section of the indenture governing events of default, if the failure continues for 60 days after written notice by the trustee or the holders of
at least 25% in aggregate principal amount of the debt securities of the series then outstanding; |
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uncured or unwaived failure to pay principal of or interest on any of our other obligations for borrowed money, including default under any other
series of debt securities, beyond any period of grace with respect thereto if (a) the aggregate principal amount of the obligation is in excess of the greater of $50,000,000 or 5% of our consolidated total debt; and (b) the default in
payment is not being contested by us in good faith and by appropriate proceedings; |
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specified events of bankruptcy, insolvency, receivership or reorganization; or |
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any other event of default provided with respect to debt securities of that series. |
Notice and Declaration of Defaults
So long as the debt securities of any series remain outstanding, we will be required to furnish annually to the trustee a certificate of one of our corporate officers stating whether, to the best of their
knowledge, we are in default under any of the provisions of the indenture, and specifying all defaults, and the nature thereof, of which they have knowledge. We will also be required to furnish to the trustee copies of specified reports filed by us
with the SEC.
The indenture provides that the trustee will, within 90 days after the occurrence of a default
with respect to any series for which there are debt securities outstanding which is continuing, give to the holders of those debt securities notice of all uncured defaults known to it, including events specified above without grace periods. Except
in the case of default in the payment of principal, premium, if any, or interest on any of the debt securities of any series or the payment of any sinking fund installment on the debt securities of any series, the trustee may withhold notice to the
holders if the trustee in good faith determines that withholding notice is in the interest of the holders of the debt securities.
The trustee or the holders of 25% in aggregate principal amount of the outstanding debt securities of any series may declare the debt securities of that series immediately due and payable upon the
occurrence of any event of default after expiration of any applicable grace period. In some cases, the holders of a majority in principal amount of the debt securities of any series then outstanding may waive any past default and its consequences,
except a default in the payment of principal, premium, if any, or interest, including sinking fund payments.
If a specified event of bankruptcy, insolvency, receivership, or reorganization occurs and is continuing, then the
principal amount of (or, if the debt securities of that series are original issue discount debt securities, such portion of the principal amount as may be specified in their terms as due and payable upon acceleration) and any accrued and unpaid
interest on that series will immediately become due and payable without any declaration or other act on the part of the trustee or any holder.
Actions upon Default
Subject to the provisions of the indenture relating to the duties of the trustee in case an event of default with respect to any series of debt securities occurs and is continuing, the indenture provides
that the trustee will be under no obligation to exercise any of its rights or powers under the indenture at the request, order or direction of any of the holders of debt securities outstanding of any series unless the holders have offered to the
trustee reasonable indemnity. The right of a holder to institute a proceeding with respect to the indenture is subject to conditions precedent including notice and indemnity to the trustee, but the holder has a right to receipt of principal,
premium, if any, and interest on their due dates or to institute suit for the enforcement thereof, subject to specified limitations with respect to defaulted interest.
The holders of a majority in principal amount of the debt securities outstanding of the series in default will have the
right to direct the time, method and place for conducting any proceeding for any remedy available to the trustee, or exercising any power or trust conferred on the trustee. Any direction by the holders will be in accordance with law and the
provisions of the indenture, provided that the trustee may decline to follow any such direction if the trustee determines on the advice of counsel that the proceeding may not be lawfully taken or would be materially or unjustly prejudicial to
holders not joining in the direction. The trustee will be under no obligation to act in accordance with the direction unless the holders offer the trustee reasonable security or indemnity against costs, expenses and liabilities which may be incurred
thereby.
Governing Law
The indenture and the debt securities will be governed by, and construed in accordance with, the laws of the State of New York.
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Concerning the Trustee
We and our affiliates utilize a full range of treasury services, including investment management and currency and
derivative trading, from the trustee and its affiliates in the ordinary course of business to meet our funding and investment needs.
Under the indenture, the trustee is required to transmit annual reports to all holders regarding its eligibility and qualifications as trustee under the indenture and specified related matters.
Book-Entry, Delivery and Form
Except as set forth below, debt securities will be represented by one or more permanent, global note in registered form without interest coupons (the “Global Notes”).
The Global Notes will be deposited upon issuance with the trustee as custodian for DTC, in New York, New York, and
registered in the name of DTC’s nominee, Cede & Co., in each case for credit to an account of a direct or indirect participant in DTC as described below. Beneficial interests in the Global Notes may be held through the Euroclear System
(“Euroclear”) and Clearstream Banking, S.A. (“Clearstream”) (as indirect participants in DTC).
Except as set forth below, the Global Notes may be transferred, in whole but not in part, only to another nominee of DTC or to a successor of DTC or its nominee. Beneficial interests in the Global Notes
may not be exchanged for Certificated Notes (as defined below) except in the limited circumstances described below. See “—Exchange of Global Notes for Certificated Notes.” Except in the limited circumstances described below,
owners of beneficial interests in the Global Notes will not be entitled to receive physical delivery of Certificated Notes.
Transfers of beneficial interests in the Global Notes will be subject to the applicable rules and procedures of DTC and its direct or indirect participants (including, if applicable, those of
Euroclear and Clearstream), which may change from time to time.
Depository Procedures
The following description of the operations and procedures of DTC, Euroclear and Clearstream are provided solely as a
matter of convenience. These operations and procedures are solely within the control of the respective settlement systems and are subject to changes by them. We take no responsibility for these operations and procedures and urge investors to contact
the system or their participants directly to discuss these matters.
DTC has advised us that DTC is a
limited-purpose trust company created to hold securities for its participating organizations (collectively, the “Participants”) and to facilitate the clearance and settlement of transactions in those securities between Participants through
electronic book-entry changes in accounts of its Participants. The Participants include securities brokers and dealers (including the initial purchasers), banks, trust companies, clearing corporations and certain other organizations. Access to
DTC’s system is also available to other entities such as banks, brokers, dealers and trust companies that clear through or maintain a custodial relationship with a Participant, either directly or indirectly (collectively, the “Indirect
Participants”). Persons who are not Participants may beneficially own securities held by or on behalf of DTC only through the Participants or the Indirect Participants. The ownership interests in, and transfers of ownership interests in, each
security held by or on behalf of DTC are recorded on the records of the Participants and Indirect Participants.
DTC has also advised us that, pursuant to procedures established by it:
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upon deposit of the Global Notes, DTC will credit the accounts of Participants designated by the initial purchasers with portions of the principal
amount of the Global Notes; and |
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ownership of these interests in the Global Notes will be shown on, and the transfer of ownership of these interests will be effected only through,
records maintained by DTC (with respect to the Participants) or by the Participants and the Indirect Participants (with respect to other owners of beneficial interests in the Global Notes). |
14
Investors in the Global Notes who are Participants in DTC’s system may
hold their interests therein directly through DTC. Investors in the Global Notes who are not Participants may hold their interests therein indirectly through organizations (including Euroclear and Clearstream) which are Participants in such system.
Euroclear and Clearstream may hold interests in the Global Notes on behalf of their participants through customers’ securities accounts in their respective names on the books of their respective depositories, which are Euroclear Bank S.A./N.V.,
as operator of Euroclear, and Citibank, N.A., as operator of Clearstream. All interests in a Global Note, including those held through Euroclear or Clearstream, may be subject to the procedures and requirements of DTC. Those interests held through
Euroclear or Clearstream may also be subject to the procedures and requirements of such systems.
The laws of
some states require that certain Persons take physical delivery in definitive form of securities that they own. Consequently, the ability to transfer beneficial interests in a Global Note to such Persons will be limited to that extent. Because DTC
can act only on behalf of Participants, which in turn act on behalf of Indirect Participants, the ability of a Person having beneficial interests in a Global Note to pledge such interests to Persons that do not participate in the DTC system, or
otherwise take actions in respect of such interests, may be affected by the lack of a physical certificate evidencing such interests.
Except as described below, owners of an interest in the Global Notes will not have notes registered in their names, will not receive physical delivery of Certificated Notes and will not be considered
the registered owners or “Holders” thereof under the indenture for any purpose.
Payments in
respect of the principal of, and interest and premium, if any, on a Global Note registered in the name of DTC or its nominee will be payable to DTC in its capacity as the registered Holder under the indenture. Under the terms of the indenture, we
and the trustee will treat the Persons in whose names the notes, including the Global Notes, are registered as the owners of the notes for the purpose of receiving payments and for all other purposes. Consequently, neither we, the trustee nor any of
our agents or agents of the trustee has or will have any responsibility or liability for:
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any aspect of DTC’s records or any Participant’s or Indirect Participant’s records relating to or payments made on account of
beneficial ownership interests in the Global Notes or for maintaining, supervising or reviewing any of DTC’s records or any Participant’s or Indirect Participant’s records relating to the beneficial ownership interests in the Global
Notes; or |
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• |
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any other matter relating to the actions and practices of DTC or any of its Participants or Indirect Participants. |
DTC has advised us that its current practice, at the due date of any payment in respect of securities such as the notes,
is to credit the accounts of the relevant Participants with the payment on the payment date unless DTC has reason to believe it will not receive payment on such payment date. Each relevant Participant is credited with an amount proportionate to its
beneficial ownership of an interest in the principal amount of the notes as shown on the records of DTC. Payments by the Participants and the Indirect Participants to the beneficial owners of notes will be governed by standing instructions and
customary practices and will be the responsibility of the Participants or the Indirect Participants and will not be the responsibility of DTC, the trustee or us. Neither we nor the trustee will be liable for any delay by DTC or any of its
Participants in identifying the beneficial owners of the notes, and we and the trustee may conclusively rely on and will be protected in relying on instructions from DTC or its nominee for all purposes.
Transfers between Participants in DTC will be effected in accordance with DTC’s procedures, and will be settled in
same-day funds, and transfers between participants in Euroclear and Clearstream will be effected in accordance with their respective rules and operating procedures.
Cross-market transfers between the Participants in DTC, on the one hand, and Euroclear or Clearstream participants, on the
other hand, will be effected through DTC in accordance with DTC’s rules on behalf of Euroclear or Clearstream, as the case may be, by its depositary; however, such cross-market transactions will require delivery of instructions to
Euroclear or Clearstream, as the case may be, by the counterparty in such system in accordance with the rules and procedures and within the established deadlines (Brussels time) of such system. Euroclear or Clearstream, as the case may be,
will, if the transaction meets its settlement requirements, deliver instructions to its respective depositary to take action to effect final settlement on its behalf by delivering or receiving interests in the relevant Global Note in DTC, and making
or receiving payment in accordance with normal procedures for same-day funds settlement applicable to DTC. Euroclear participants and Clearstream participants may not deliver instructions directly to the depositories for Euroclear or Clearstream.
15
DTC has advised us that it will take any action permitted to be taken by a
Holder of notes only at the direction of one or more Participants to whose account DTC has credited the interests in the Global Notes and only in respect of such portion of the aggregate principal amount of the notes as to which such Participant or
Participants has or have given such direction. However, if there is an Event of Default under the notes, DTC reserves the right to exchange the Global Notes for definitive notes in registered certificated form (“Certificated Notes”), and
to distribute such notes to its Participants.
Although DTC, Euroclear and Clearstream have agreed to the
foregoing procedures to facilitate transfers of interests in the Global Notes among participants in DTC, Euroclear and Clearstream, they are under no obligation to perform or to continue to perform such procedures, and may discontinue such
procedures at any time. None of the Company, the trustee or any of their respective agents will have any responsibility for the performance by DTC, Euroclear or Clearstream or their respective participants or indirect participants of their
respective obligations under the rules and procedures governing their operations.
Exchange of Global Notes for Certificated Notes
A Global Note is exchangeable for Certificated Notes in minimum denominations of $1,000 and in integral
multiples of $1,000, if:
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DTC (a) notifies us that it is unwilling or unable to continue as depositary for the Global Notes or (b) has ceased to be a clearing
agency registered under the Exchange Act and in either event we fail to appoint a successor depositary within 90 days; or |
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there has occurred and is continuing an Event of Default and DTC notifies the trustee of its decision to exchange the Global Note for Certificated
Notes. |
Beneficial interests in a Global Note also may be exchanged for Certificated Notes in
the limited other circumstances permitted by the indenture. In all cases, Certificated Notes delivered in exchange for any Global Note or beneficial interests in Global Notes will be registered in the names, and issued in any approved denominations,
requested by or on behalf of the depositary (in accordance with its customary procedures).
Same Day Settlement and Payment
We will make payments in respect of the notes represented by the Global Notes (including principal, premium, if any, and
interest) by wire transfer of immediately available funds to the accounts specified by the Global Note Holder. We will make all payments of principal, interest and premium, if any, with respect to Certificated Notes by wire transfer of immediately
available funds to the accounts specified by the Holders of the Certificated Notes or, if no such account is specified, by mailing a check to each such Holder’s registered address. The notes represented by the Global Notes are expected to be
eligible to trade in DTC’s Same-Day Funds Settlement System, and any permitted secondary market trading activity in such notes will, therefore, be required by DTC to be settled in immediately available funds. We expect that secondary trading in
any Certificated Notes will also be settled in immediately available funds.
Because of time zone differences,
the securities account of a Euroclear or Clearstream participant purchasing an interest in a Global Note from a Participant in DTC will be credited, and any such crediting will be reported to the relevant Euroclear or Clearstream participant, during
the securities settlement processing day (which must be a business day for Euroclear and Clearstream) immediately following the settlement date of DTC. DTC has advised us that cash received in Euroclear or Clearstream as a result of sales of
interests in a Global Note by or through a Euroclear or Clearstream participant to a Participant in DTC will be received with value on the settlement date of DTC but will be available in the relevant Euroclear or Clearstream cash account only as of
the business day for Euroclear or Clearstream following DTC’s settlement date.
DESCRIPTION OF
DEBT WARRANTS
We may issue, alone or together with debt securities, debt warrants for the purchase of debt
securities. The debt warrants will be issued under a debt warrant agreement to be entered into between us and a warrant agent to be selected at time of issuance. The debt warrant agreement may include or incorporate by reference standard warrant
provisions.
16
General
If debt warrants are offered, the related prospectus supplement and/or other offering material will describe the designation and terms of the debt warrants, including, among other things, the following:
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the offering price, if any; |
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the designation, aggregate principal amount and terms of the debt securities purchasable upon exercise of the debt warrants;
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if applicable, the date on and after which the debt warrants and the related offered securities will be separately transferable;
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the principal amount of debt securities purchasable upon exercise of one debt warrant and the price at which that principal amount of debt
securities may be purchased upon exercise; |
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the date on which the right to exercise the debt warrants will commence and the date on which that right will expire; |
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a discussion of material federal income tax considerations; |
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whether the warrants represented by the debt warrant certificates will be issued in registered or bearer form; |
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the currency, currencies or currency units in which the offering price, if any, and exercise price are payable; |
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the anti-dilution provisions of the debt warrants; and |
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any other terms of the debt warrants. |
Holders of debt warrants do not have any of the rights of holders of debt securities, including the right to receive the payment of principal of, or interest on, the debt securities or to enforce any of
the covenants of the debt securities or the indenture except as otherwise provided in the indenture.
Exercise of Debt Warrants
Debt warrants may be exercised by surrendering the debt warrant certificate at the warrant agent office of
the debt warrant agent, with the form of election to purchase on the reverse side of the debt warrant certificate completed and signed by the warrant holder, or its duly authorized agent, with such signature to be guaranteed by a bank or trust
company, by a broker or dealer which is a member of the National Association of Securities Dealers, Inc. or by a member of a national securities exchange. The form of election should indicate the warrant holder’s election to exercise all
or a portion of the debt warrants evidenced by the certificate. Surrendered debt warrant certificates must be accompanied by payment of the aggregate exercise price of the debt warrants to be exercised, as set forth in the related prospectus
supplement and/or other offering material.
Upon the exercise of debt warrants, we will issue the debt
securities in authorized denominations in accordance with the instructions of the exercising warrant holder. If less than all of the debt warrants evidenced by the debt warrant certificate are exercised, a new debt warrant certificate will be issued
representing the unexercised debt warrants.
DESCRIPTION OF PREFERRED STOCK
We are authorized to adopt resolutions providing for the issuance, in one or more series, of up to 15,000,000 shares of
preferred stock, $1.00 par value, with such powers, preferences and relative, participating, optional or other special rights and qualifications, limitations or restrictions thereof as shall be adopted by the board of directors or a duly authorized
committee thereof. We have no outstanding shares of preferred stock. However, 450,000 shares of a series of preferred stock have been designated as Series A Junior Preferred Stock (the “Series A Junior Preferred Stock”).
The description below sets forth certain general terms and provisions of the shares of preferred stock covered
by this prospectus. The specific terms of the preferred stock to be offered (the “Offered Preferred Stock”) will be described in the prospectus supplement relating to such Offered Preferred Stock. The following summaries of certain
provisions of the preferred stock do not purport to be complete and are subject to, and are qualified in their entirety by reference to, our restated certificate of incorporation and the certificate of designation relating to the particular series
of preferred stock.
17
If so indicated in any prospectus supplement, the terms of the Offered
Preferred Stock may differ from the terms set forth below.
General
Unless otherwise specified in any prospectus supplement relating to the Offered Preferred Stock, each series of preferred
stock will rank on a parity as to dividends, upon liquidation and in all other respects with all other preferred stock, except the Series A Junior Preferred Stock, which will, if issued, rank junior to all series of preferred stock.
The preferred stock will, when issued, be fully paid and nonassessable. The preferred stock will not be convertible into
shares of common stock or other shares and holders thereof will have no preemptive rights. The preferred stock will have the dividend, liquidation, redemption and voting rights set forth below unless otherwise provided in the prospectus supplement
relating to the Offered Preferred Stock.
Reference is made to any prospectus supplement relating to the
Offered Preferred Stock offered thereby for specific terms, including:
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the title and stated value of such preferred stock; |
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the number of shares of such preferred stock offered, the liquidation preference per share and the offering price of such preferred stock;
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the dividend rate(s), period(s) and/or payment date(s) or methods of calculation thereof applicable to such preferred stock;
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the date from which dividends on such preferred stock shall accumulate, if applicable; |
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the procedures for any auction and remarketing, if any, of such preferred stock; |
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the provision for a sinking fund, if any, for such preferred stock; |
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the provision for redemption, if applicable, of such preferred stock; |
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any listing of such preferred stock on any securities exchange; and |
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any other specific terms, preferences, rights, limitations or restrictions of such preferred stock. |
Subject to the terms of the Offered Preferred Stock, the remaining authorized shares of undesignated preferred stock may
be issued by us in one or more series, at any time or from time to time, with such designations, preferences and relative, participating, optional or other special rights and qualifications, limitations or restrictions thereof, as the board of
directors or any duly authorized committee thereof shall determine, all without further action of the stockholders, including holders of the preferred stock.
As used herein, the term “Pari Passu Preferred” means the preferred stock and any shares of stock issued by us ranking on a parity with the preferred stock as to payment of dividends and upon
distribution of assets, and the term “Junior Stock” means the Common Stock, the Series A Junior Preferred Stock and any other stock issued by us ranking junior to the Pari Passu Preferred.
Dividends
Holders of the Offered Preferred Stock will be entitled to receive cash dividends, when, as and if declared by the board
of directors, out of our assets legally available for payment, at such rate and on such dates as will be set forth in the applicable prospectus supplement. Each dividend will be payable to holders of record as they appear on our stock books on the
record dates fixed by the board of directors. Dividends, if cumulative, will be cumulative from and after the date set forth in the applicable prospectus supplement. If, for any dividend period or periods, dividends on any Pari Passu Preferred have
not been paid or declared and set apart for payment, we may not declare any dividends (except a dividend payable in Junior Stock or in options, rights or warrants to purchase or acquire Junior Stock) on, or make any distribution (except as
aforesaid) on the Junior Stock, or make any payment on account of the purchase, redemption or other retirement of Junior Stock (except out of the proceeds of the sale of Junior Stock). Dividends in full may not be declared or paid or set apart for
payment on any series of Pari Passu Preferred unless (i) there shall be no arrearages in dividends for any past dividend periods on any series of Pari Passu Preferred and (ii) to the extent that such dividends are cumulative, dividends in
full for the current dividend period have been declared or paid on all Pari Passu Preferred. Any dividends declared or paid when dividends are not so declared, paid or set apart in full shall be shared ratably by the holders of all series of Pari
Passu Preferred in proportion to such respective arrearages and undeclared and unpaid current cumulative dividends. No interest, or sum of money in lieu of interest, shall be payable in respect of any dividend payment or payments which may be in
arrears.
18
Liquidation Rights
In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Company, the holders of the
Offered Preferred Stock will be entitled to receive out of our assets available for distribution to stockholders, before any distribution of assets is made to holders of any Junior Stock, liquidating distributions in the amount set forth in the
applicable prospectus supplement plus all accrued and unpaid dividends. If, upon any voluntary or involuntary liquidation, dissolution or winding up of the Company, the amounts payable with respect to the Pari Passu Preferred are not paid in full,
the holders of Pari Passu Preferred will share ratably in any such distribution of our assets in proportion to the full respective preferential amounts to which they are entitled. After payment of the full amount of the liquidating distribution to
which they are entitled, the holders of the Pari Passu Preferred will not be entitled to any further participation in any distribution of assets by us. A consolidation or merger of the Company with or into any corporation or corporations or a sale
of all or substantially all of our assets shall not be deemed to be a liquidation, dissolution or winding up of the Company.
Redemption
If so determined by the board of directors, the Offered Preferred Stock will be redeemable in whole or in
part at our option, at the times and at the redemption prices set forth in the applicable prospectus supplement and/or other offering documents.
If dividends on any series of Pari Passu Preferred have not been paid in full or declared and set apart for payment, no series of Pari Passu Preferred may be redeemed as a whole or in part, unless all
series of Pari Passu Preferred are simultaneously redeemed, and we may not purchase or acquire any shares of Pari Passu Preferred otherwise than pursuant to an exchange offer made on the same terms to all holders of Pari Passu Preferred, without in
either case the consent of the holders of at least two-thirds of all Pari Passu Preferred voting together as a single class without regard to series.
Voting Rights
Except as indicated below or in the
prospectus supplement, or except as expressly required by applicable law, the holders of the preferred stock will not be entitled to vote. If the equivalent of six quarterly dividends payable on any series of preferred stock or any other series of
Pari Passu Preferred that has comparable voting rights are in default (whether or not declared or consecutive), the number of directors of the Company shall be increased by two and the holders of all outstanding series of preferred stock and such
Pari Passu Preferred (whether or not dividends thereon are in default), voting as a single class without regard to series, will be entitled to elect the two additional directors until all dividends in default have been paid or declared and set apart
for payment. The holders of preferred stock and such Pari Passu Preferred may exercise such special class voting rights at meetings of the stockholders for the election of directors or, under certain circumstances, at special meetings for the
purpose of electing such directors, in either case at which the holders of not less than one-third of the aggregate number of shares of Preferred Stock and such Pari Passu Preferred are present in person or by proxy.
The affirmative vote of the holders of at least two-thirds of the outstanding Pari Passu Preferred, voting as a single
class without regard to series, will be required (i) for any amendment of our restated certificate of incorporation that will adversely affect the preferences, rights or voting powers of the Pari Passu Preferred, but, in any case in which one
or more, but not all, series of Pari Passu Preferred would be so affected as to their preferences, rights or voting powers, only the consent of the holders of at least two-thirds of the shares of each series that would be so affected, voting
separately as a class, shall be required or (ii) to issue any class of stock that shall have preference as to dividends or distribution of assets over any outstanding Pari Passu Preferred.
19
DESCRIPTION OF PREFERRED AND COMMON WARRANTS
We may issue, alone or together with preferred stock or common stock, warrants for the purchase of preferred stock or
common stock. The preferred or common warrants will be issued under a warrant agreement to be entered into between us and a warrant agent to be selected at the time of the issue. The warrant agreement may include or incorporate by reference standard
warrant provisions.
General
If preferred or common warrants are offered, the related prospectus supplement and/or other offering material will describe the designation and terms of the warrants, including, among other things, the
following:
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the offering price, if any; |
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the designation, the security, as well as the terms of any preferred stock, purchasable upon exercise of the applicable warrants;
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if applicable, the date on and after which the warrants and the related offered securities will be separately transferable;
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the number of shares of preferred stock or common stock purchasable upon exercise of one preferred or common warrant, as appropriate, and the
initial price at which the shares may be purchased upon exercise; |
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the date on which the right to exercise the warrants will commence and the date on which that right will expire; |
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a discussion of material federal income tax considerations; |
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the call provisions, if any; |
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the currency, currencies or currency units in which the offering price, if any, and exercise price are payable; |
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the anti-dilution provisions of the warrants; and |
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any other terms of the warrants. |
Exercise of Preferred or Common Warrants
Preferred or
common warrants may be exercised by surrendering to the designated warrant agent the warrant certificate with the form of election to purchase on the reverse side of the certificate duly completed and signed by the warrant holder, or its duly
authorized agent, with such signature to be guaranteed by a bank or trust company, by a broker or dealer which is a member of the National Association of Securities Dealers, Inc. or by a member of a national securities exchange. The form of
election should indicate the warrant holder’s election to exercise all or a portion of the warrants evidenced by the certificate. Surrendered preferred or common stock warrant certificates must be accompanied by payment of the aggregate
exercise price of the warrants to be exercised, as set forth in the related prospectus supplement and/or other offering material. The payment must be made in U.S. dollars, unless otherwise provided in the related prospectus supplement and/or other
offering material. Upon the warrant agent’s receipt of the surrendered warrant certificates and payment of the aggregate exercise price of the warrants, the warrant agent will request that the transfer agent issue and deliver to, or upon the
written order of, the exercising warrant holder, a certificate representing the number of shares of preferred stock or common stock, as appropriate, purchased. If less than all of the warrants evidenced by any warrant certificate are exercised, the
warrant agent will deliver to the exercising warrant holder a new warrant certificate representing the unexercised preferred or common stock warrants.
Anti-dilution and Other Provisions
The exercise price
payable and the number of shares of preferred stock or common stock purchasable upon the exercise of each preferred or common stock warrant, and the number of preferred or common stock warrants outstanding, will be subject to adjustment if specified
events occur. In lieu of adjusting the number of shares of preferred stock or common stock purchasable upon exercise of each preferred or common stock warrant, we may elect to adjust the number of preferred or common stock warrants. No adjustment in
the number of shares purchasable upon exercise of the preferred or common stock warrants will be required until cumulative adjustments require an adjustment of at least 1% of the number of shares purchasable. We may, at our option, reduce the
exercise price at any time. No fractional shares will be issued upon exercise of preferred or common stock warrants, but we will pay the cash value of any fractional shares otherwise issuable. In the case of any consolidation, merger, or sale or
conveyance of our property as an entirety or substantially as an entirety, the holder of each outstanding preferred or common stock warrant will have the right to the kind and amount of shares of stock and other securities and property (including
cash) receivable by a holder of the number of shares of preferred stock or common stock into which the preferred or common stock warrants were exercisable immediately prior to the consolidation, merger, or sale or conveyance, subject to payment of
the aggregate exercise price of the preferred or common stock warrants.
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No Rights as Shareholders
Prior to the exercise of their preferred or common warrants, holders of preferred or common warrants will not, solely by
virtue of such holdings, have any of the rights of holders of the preferred stock or common stock purchasable upon such exercise, and will not be entitled to any dividend payments on the preferred stock or common stock purchasable upon such
exercise.
LEGAL MATTERS
Quarles & Brady LLP, 411 East Wisconsin Avenue, Milwaukee, Wisconsin 53202, our counsel, will pass upon the
validity of the securities offered pursuant to this prospectus and the prospectus supplements. The opinion of Quarles & Brady LLP may be conditioned upon and may be subject to assumptions regarding future action required to be taken by
us and any underwriters, dealers or agents in connection with the issuance and sale of any securities. The opinion of Quarles & Brady LLP may be subject to other conditions and assumptions, as indicated in the prospectus supplements.
EXPERTS
The consolidated financial statements incorporated in this prospectus by reference from the Company’s Annual Report
on Form 10-K, and the effectiveness of the Company’s internal control over financial reporting, have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their reports, which are
incorporated herein by reference. Such financial statements have been so incorporated in reliance upon the reports of such firm given upon their authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the SEC pursuant to the
Securities Exchange Act of 1934, as amended (the “Exchange Act”) (File No. 1-7724). We also filed a Registration Statement on Form S-3, including exhibits (the “Registration Statement”), under the Securities Act of
1933, as amended, with respect to the securities offered by this prospectus. This prospectus is a part of the Registration Statement, but does not contain all of the information included in the Registration Statement or the exhibits to the
Registration Statement. You may read and copy the Registration Statement and any other document we file with the SEC at the SEC’s Public Reference Room at 100 F Street, N.E., Washington, D.C., 20549. Please call the SEC at 1-800-SEC-0330
for further information about the Public Reference Room. Our SEC filings are also available to the public on the SEC’s website at http://www.sec.gov and on our website at http://www.snapon.com.
The SEC allows us to “incorporate by reference” into this prospectus the information we file with it, which
means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be part of this prospectus, and later information that we file with the Commission 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 Exchange Act until our offering is
completed:
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i. |
our Annual Report on Form 10-K for the fiscal year ended January 3, 2015; |
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ii. |
our Quarterly Reports on Form 10-Q for the quarters ended April 4, 2015, July 4, 2015, and October 3, 2015;
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iii. |
our Current Report on Form 8-K dated April 30, 2015; and |
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iv. |
the description of our common stock contained in Amendment No. 1 to the Registration Statement on Form 8-A/A, dated October 14, 2009.
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You may request a copy of these filings, at no cost, by writing to or
calling us at our principal executive offices:
Snap-on Incorporated
Attn: Secretary
2801 80th Street
Kenosha, Wisconsin 53143
(262) 656-5200
You should not assume that the information in this prospectus, any prospectus supplement and/or other offering material, as well as the information we file or previously filed with the SEC that we
incorporate by reference in this prospectus, any prospectus supplement and/or other offering material, is accurate as of any date other than its respective date.
22
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
| Item 14. |
Other Expenses of Issuance and Distribution. |
The following table sets forth the estimated costs and expenses, other than underwriting discounts, payable by the registrant in connection with the offering of the securities being registered.
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| Securities and Exchange Commission Registration Fee |
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(1) |
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| Trustee’s Fees |
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(2) |
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| Printing and Engraving Expenses |
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(2) |
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| Rating Agency Fees |
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(2) |
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| Accounting Fees and Expenses |
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(2) |
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| Legal Fees and Expenses |
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(2) |
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| Blue Sky Fees and Expenses |
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(2) |
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| Miscellaneous Expenses |
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(2) |
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| Total Expenses |
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(2) |
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|
|
|
| (1) |
Pursuant to Rules 456(b) and 457(r) under the Securities Act of 1933, as amended (the “Securities Act”), the SEC registration fee will be
paid at the time of any particular offering of securities under the registration statement, and is therefore not currently determinable. As noted above, this Registration Statement also includes 156,336 unsold shares of common stock, $1.00 par
value, of Snap-on Incorporated that were previously registered pursuant to the Registration Statement on Form S-3 (Commission File No. 333-185480) that was filed on December 14, 2012 (the “Previous Registration Statement”).
Pursuant to Rule 415(a)(6) under the Securities Act, the $1,670.34 filing fee previously paid in connection with such unsold securities will continue to be applied to such unsold securities, and the offering of securities pursuant to the Previous
Registration Statement will be deemed terminated as of the date of effectiveness of this Registration Statement. |
| (2) |
These fees are calculated based on the securities offered and the number of issuances and, accordingly, cannot be estimated at this
time. |
| Item 15. |
Indemnification of Directors and Officers. |
Section 145 of the Delaware General Corporation Law permits corporations to indemnify directors and officers. The statute generally requires that to obtain indemnification the director or officer
must have acted in good faith and in a manner reasonably believed to be in or not opposed to the best interests of the corporation; and, additionally, in criminal proceedings, that the officer or director had no reasonable cause to believe his
conduct was unlawful. In any proceeding by or in the right of the corporation, no indemnification may be provided if the director or officer is adjudged liable to the corporation (unless ordered by the court). Indemnification against expenses
actually and reasonably incurred by a director or officer is required to the extent that such director or officer is successful on the merits in the defense of the proceeding. Our Bylaws provide generally for indemnification, to the fullest extent
permitted by Delaware law, of a director and officer who was or is a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”),
by reason of the fact that he or she is or was a director or officer of the Company or was serving at the request of the Company as a director, officer, employee or agent of certain other related entities. The Bylaws provide that the indemnification
will cover all costs, charges, expenses, liabilities and losses reasonably incurred by the director or officer. The Bylaws further provide that a director or officer has the right to be paid expenses incurred in defending a proceeding, except the
amount of any settlement, in advance of its final disposition upon receipt by us of an undertaking from the director or officer to repay the advances if it is ultimately determined that he or she is not entitled to indemnification.
We have entered into Indemnification Agreements with our directors and certain officers. The Indemnification Agreements
provide generally that we must promptly advance directors and certain officers all reasonable costs of defending against certain litigation upon request, and must indemnify such director or officer against liabilities incurred in connection with
such litigation to the extent that such director or officer is successful on the merits of the proceeding, or, if unsuccessful, to the extent that such director or officer acted in good faith. However, no indemnification will be made under the
Indemnification Agreement if the director or officer is found to not have acted in good faith. The advance is subject to repayment under certain circumstances.
II-1
Our directors and officers are also covered by insurance policies
indemnifying them (subject to certain limits and exclusions) against certain liabilities, including certain liabilities arising under the Securities Act, which might be incurred by them in such capacities and against which they cannot be indemnified
by us.
The exhibits listed in the accompanying Exhibit Index are filed or incorporated by reference as part of this
registration statement.
| 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. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration
statement; |
| |
(iii) |
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material
change to such information in the registration statement; |
Provided, however, that
paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in 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, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is
part of 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 the time shall be deemed to be the initial bona fide offering thereof. |
| |
(3) |
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of
the offering. |
| |
(4) |
That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser: |
| |
(i) |
if the registrant is relying on Rule 430B: |
| |
(a) |
Each prospectus filed by a Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date
the filed prospectus was deemed part of and included in the registration statement; and |
II-2
| |
(b) |
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and
included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in
Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to
which the prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to
such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
|
| |
(5) |
That, for the purpose of determining liability of a Registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the
securities, the undersigned Registrant undertakes that in a primary offering of securities of an undersigned Registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if
the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
|
| |
(i) |
Any preliminary prospectus or prospectus of an undersigned Registrant relating to the offering required to be filed pursuant to Rule 424;
|
| |
(ii) |
Any free writing prospectus relating to the offering prepared by or on behalf of an undersigned Registrant or used or referred to by an undersigned
Registrant; |
| |
(iii) |
The portion of any other free writing prospectus relating to the offering containing material information about an undersigned Registrant or its
securities provided by or on behalf of an undersigned Registrant; and |
| |
(iv) |
Any other communication that is an offer in the offering made by an undersigned Registrant to the purchaser. |
| b. |
The undersigned registrant hereby undertakes, that, for purposes of determining any liability under the Securities Act of 1933, each filing of the
registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in this registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| c. |
The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Trust Indenture Act. |
| d. |
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, 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 Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Kenosha, State of Wisconsin, on
December 11, 2015.
|
|
|
| Snap-on Incorporated |
|
|
| By: |
|
/s/ Nichols T. Pinchuk |
|
|
Nicholas T. Pinchuk |
|
|
Chairman, President and |
|
|
Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Nicholas T. Pinchuk, Aldo J. Pagliari and Irwin M. Shur, and each of them, his or her true and
lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to the
Registration Statement on Form S-3, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and any other regulatory authority, granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this amendment to the Registration Statement has been signed
below by the following persons in the capacities and on the dates indicated.
|
|
|
|
|
| Name |
|
Capacity |
|
Date |
|
|
|
| /s/ Nicholas T. Pinchuk |
|
Chairman, President, Chief Executive Officer |
|
December 11, 2015 |
| Nicholas T. Pinchuk |
|
and Director (Principal Executive Officer) |
|
|
|
|
|
| /s/ Aldo J. Pagliari |
|
Senior Vice President-Finance and Chief |
|
December 11, 2015 |
| Aldo J. Pagliari |
|
Financial Officer (Principal Financial Officer) |
|
|
|
|
|
| /s/ Constance R. Johnsen |
|
Vice President and Controller |
|
December 11, 2015 |
| Constance R. Johnsen |
|
(Principal Accounting Officer) |
|
|
|
|
|
| /s/ Karen L. Daniel |
|
Director |
|
December 11, 2015 |
| Karen L. Daniel |
|
|
|
|
|
|
|
| /s/ John F. Fiedler |
|
Director |
|
December 11, 2015 |
| John F. Fiedler |
|
|
|
|
S-1
|
|
|
|
|
| Name |
|
Capacity |
|
Date |
|
|
|
| /s/ Ruth Ann M. Gillis |
|
Director |
|
December 11, 2015 |
| Ruth Ann M. Gillis |
|
|
|
|
|
|
|
| /s/ James P. Holden |
|
Director |
|
December 11, 2015 |
| James P. Holden |
|
|
|
|
|
|
|
| /s/ Nathan J. Jones |
|
Director |
|
December 11, 2015 |
| Nathan J. Jones |
|
|
|
|
|
|
|
| /s/ Henry W. Knueppel |
|
Director |
|
December 11, 2015 |
| Henry W. Knueppel |
|
|
|
|
|
|
|
| /s/ W. Dudley Lehman |
|
Director |
|
December 11, 2015 |
| W. Dudley Lehman |
|
|
|
|
|
|
|
| /s/ Gregg M. Sherrill |
|
Director |
|
December 11, 2015 |
| Gregg M. Sherrill |
|
|
|
|
|
|
|
| /s/ Donald J. Stebbins |
|
Director |
|
December 11, 2015 |
| Donald J. Stebbins |
|
|
|
|
S-2
EXHIBIT INDEX
|
|
|
| Exhibit
Number |
|
Document Description |
| (1) |
|
Forms of Underwriting Agreement (to be filed by amendment or as an exhibit to a Current Report on Form 8-K and incorporated herein by reference). |
| (3)(i) |
|
Restated Certificate of Incorporation, as amended through April 25, 2013 (incorporated by reference to Exhibit 3.1 to the Quarterly Report on Form 10-Q for the quarterly
period ended September 28, 2013 [File No. 1-7724]). |
| (3)(ii) |
|
Bylaws, as amended and restated as of April 25, 2013 (incorporated by reference to Exhibit 3.2 to the Current Report on Form 8-K, dated April 25, 2013 [File
No. 1-7724]). |
| (4)(a) |
|
Indenture, dated as of January 8, 2007, between Snap-on Incorporated and U.S. Bank National Association as Trustee (the “Indenture”) (incorporated by reference to
Exhibit 4(b) to the Registration Statement on Form S-3, filed on January 9, 2007 [File No. 333-139863]). |
| (4)(b) |
|
Forms of Supplemental Indentures to the Indenture (to be filed by amendment or as an exhibit to a Current Report on Form 8-K and incorporated herein by
reference). |
| (4)(c) |
|
Forms of Debt Securities (to be filed by amendment or as an exhibit to a Current Report on Form 8-K and incorporated herein by reference). |
| (4)(d) |
|
Forms of Warrant (to be filed by amendment or as an exhibit to a Current Report on Form 8-K and incorporated herein by reference). |
| (4)(e) |
|
Forms of Warrant Agreement (to be filed by amendment or as an exhibit to a Current Report on Form 8-K and incorporated herein by reference). |
| (5) |
|
Opinion of Quarles & Brady LLP. |
| (12) |
|
Computation of Ratio of Earnings to Fixed Charges. |
| (23)(a) |
|
Consent of Deloitte & Touche LLP. |
| (23)(b) |
|
Consent of Quarles & Brady LLP (included in Exhibit 5). |
| (24) |
|
Power of Attorney (Signatures page to this Registration Statement on Form S-3). |
| (25) |
|
Statement of Eligibility and Qualification on Form T-1 of U.S. Bank National Association to act as Trustee under the Indenture, dated December 9, 2015. |
| (99) |
|
Description of Snap-on Common Stock (incorporated by reference to Amendment No. 1 to Registration Statement on Form 8-A, dated October 14, 2009 [File No. 1-7724]). |
E-1
Exhibit 5
Quarles & Brady LLP
411 East Wisconsin Avenue
Milwaukee, WI 53202-4497
Phone: (414) 277-5000
www.quarles.com
December 11, 2015
Snap-on Incorporated
2801 80th Street
Kenosha,
Wisconsin 53143
Ladies and Gentlemen:
We are providing this opinion as outside counsel to Snap-on Incorporated, a Delaware corporation (the “Company”), in connection with the Registration Statement on Form S-3 (the
“Registration Statement”), including the prospectus constituting a part thereof (the “Prospectus”), to be filed by the Company with the Securities and Exchange Commission (the “SEC”) pursuant to the Securities Act of
1933, as amended (the “Securities Act”). The Registration Statement relates to the proposed issuance by the Company from time to time of an indeterminate amount of the following securities (collectively, the “Securities”):
(i) shares of its common stock, $1.00 par value (the “Common Stock”); (ii) debt securities (the “Debt Securities”) to be issued under the Indenture, dated as of January 8, 2007 (the “Indenture”), between
the Company and U.S. Bank National Association, as trustee (the “Trustee”); (iii) warrants to purchase Debt Securities (the “Debt Warrants”); (iv) shares of its preferred stock, par value $1.00 per share (the
“Preferred Stock”); (v) warrants to purchase shares of Preferred Stock (the “Preferred Warrants”); and (vi) warrants to purchase shares of Common Stock (the “Common Warrants”) (the Debt Warrants, Preferred
Warrants and Common Warrants are collectively referred to as the “Warrants”). The Securities may be issued and sold by the Company from time to time as set forth in the Registration Statement and the Prospectus, and as to be set forth in
one or more supplements to the Prospectus (each, a “Prospectus Supplement”).
Certain terms of the Securities to be
issued and sold by the Company from time to time will be established by appropriate action taken by the Board of Directors of the Company or an authorized committee thereof (the “Board”) or an individual (or individuals) that has (or have)
been authorized by the Board to take such action as part of the corporate action taken or to be taken relating to the issuance of those Securities.
We have examined: (i) the Registration Statement; (ii) the Company’s Restated Certificate of Incorporation, as amended through April 25, 2013, and the Company’s Bylaws, as
amended and restated as of April 25, 2013; (iii) the corporate proceedings of the Company to authorize the filing of the Registration Statement; (iv) the Indenture; and (v) such other documents and records and matters of law as
we have deemed necessary or appropriate for purposes of this opinion. We have assumed the authenticity of all documents submitted to us as originals, the conformity to the original documents of all documents submitted to us as copies, the
genuineness of all signatures on documents reviewed by us and the legal capacity of natural persons. In rendering this opinion, we have relied as to certain factual matters on certificates of officers of the Company and of state officials.
In our examination, we assumed that (i) the Registration Statement, and any amendments thereto (including post-effective
amendments), will become effective and will comply with all applicable laws; (ii) a Prospectus Supplement, if required, will have been prepared and filed with the SEC describing the Securities offered thereby; (iii) all Securities will be
issued and sold in compliance with applicable federal and state securities laws; (iv) any supplemental indenture relating to a series of Debt Securities to be issued thereunder will be duly authorized, executed and delivered by the parties
thereto; (v) a Form T-1 will be filed with the SEC with respect to the trustee executing any supplemental indenture to the Indenture if the Form T-1 being filed as an exhibit to the Registration Statement will not be sufficient; (vi) a
definitive purchase, underwriting or similar agreement with respect to any Securities offered will have been duly authorized and validly executed and delivered by the Company and the other parties thereto; (vii) any Securities issuable upon
conversion, exchange or exercise of any Security being offered will have been duly authorized, created and, if appropriate, reserved for issuance upon such conversion, exchange or exercise; and (viii) with respect to shares of Common Stock and
Preferred Stock offered, there will be sufficient shares of Common Stock and Preferred Stock authorized under the Company’s Restated Certificate of Incorporation and not otherwise reserved for issuance.
1
Snap-on Incorporated
December 11, 2015
Page
2
Based on the foregoing, we are of the opinion that:
1. The Company is a corporation in good standing under the laws of the
State of Delaware.
2. When the terms of the issuance and
sale of the shares of Common Stock by the Company have been duly authorized and approved by the Board, and any other necessary corporate action on the part of the Company has been taken in connection therewith, and such shares of Common Stock have
been issued and delivered against consideration therefor in an amount not less than the par value thereof, and in the manner contemplated by the Registration Statement and/or the applicable Prospectus Supplement, such shares of Common Stock will be
validly issued, fully paid and nonassessable.
3. The Indenture
is, and any supplemental indenture, when duly authorized, executed and delivered by the Company, and assuming due authorization, execution and delivery by the Trustee, will be, a valid and binding agreement, and upon completion of any corporate
proceedings and the authentication, sale and delivery of the Debt Securities, the Debt Securities issued thereunder, and any Securities into which such Debt Securities may be convertible, will be legal, valid and binding obligations of the Company,
and such Debt Securities will be entitled to the benefits of such Indenture, including such terms as are established pursuant to the corporate proceedings, in accordance with the respective terms thereof.
4. Upon the authorization of issuance of the Preferred Stock by the
Board, including the approval and establishment of the terms of the particular series, the filing of the Certificate of Designation setting forth the terms of the particular series with the State of Delaware and the execution, authentication,
issuance and delivery of the Preferred Stock and payment, including the Company’s receipt of consideration in an amount not less than the par value thereof and in the manner contemplated by the Registration Statement and/or the applicable
Prospectus Supplement, the Preferred Stock will be validly issued, fully paid and nonassessable.
5. The Warrants, assuming the due authorization thereof, the completion
of corporate proceedings with respect thereto, the consistency of the terms thereof with the description of the Warrants contained in the Registration Statement and any applicable Prospectus Supplement and the due authorization of any Securities
underlying the Warrants, when duly executed, delivered and countersigned in accordance with the warrant agreements, and when payment therefor is received, will be validly issued and entitled to the benefits provided by the warrant agreements.
6. The 156,336 shares of Common Stock that may be issued and
sold pursuant to the Company’s Franchised Dealer Stock Ownership Plan (the “Plan”) to be the subject of a Prospectus Supplement to be filed by the Company, have been duly authorized and, when paid for in accordance with the provisions
of the Plan, including the Company’s receipt of consideration therefor in an amount not less than the par value thereof, will be validly issued, fully paid and nonassessable.
The opinions expressed herein are subject to the qualification that the enforceability of any contract or agreement or of any security or
other instrument issued thereunder may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting the enforceability of creditors’ rights generally and to court decisions with
respect thereto and to general principles of equity (regardless of whether considered in a proceeding in equity or at law).
This opinion is limited to the laws of the State of Wisconsin and the provisions of the Delaware General Corporation law, and we express
no opinion herein as to the effect of any other laws. To the extent that laws other than those of the State of Wisconsin or the corporate law of the State of Delaware govern a particular document, we have rendered this opinion as if Wisconsin law
governs such document.
Snap-on Incorporated
December 11, 2015
Page
3
We consent to the use of this opinion as Exhibit 5 to the Registration Statement and to
the use of our name under the caption “Legal Matters” in the Prospectus that is part of the Registration Statement. In giving our consent, we do not admit that we are “experts” within the meaning of Section 11 of the Securities
Act or within the category of persons whose consent is required by Section 7 of the Securities Act.
Very truly yours,
/s/ Quarles & Brady LLP
QUARLES & BRADY LLP
Exhibit 12
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(Dollars in millions)
The following table presents Snap-on Incorporated’s ratio of earnings to fixed charges for the nine months ended
October 3, 2015 and September 27, 2014, and for each of its last five fiscal years:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Nine Months
Ended
October 3,
2015 |
|
|
Nine Months
Ended
September 27, 2014 |
|
|
2014 |
|
|
2013 |
|
|
2012 |
|
|
2011 |
|
|
2010 |
|
| Earnings before income taxes and equity earnings |
|
$ |
516.7 |
|
|
$ |
457.5 |
|
|
$ |
630.9 |
|
|
$ |
526.2 |
|
|
$ |
460.2 |
|
|
$ |
412.9 |
|
|
$ |
277.4 |
|
| Distributed income of equity investees |
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
5.0 |
|
|
|
2.0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Earnings before income taxes and equity earnings, as adjusted |
|
$ |
516.7 |
|
|
$ |
457.5 |
|
|
$ |
630.9 |
|
|
$ |
526.2 |
|
|
$ |
460.2 |
|
|
$ |
417.9 |
|
|
$ |
279.4 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Fixed charges: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Interest on debt |
|
$ |
38.2 |
|
|
$ |
38.3 |
|
|
$ |
51.8 |
|
|
$ |
55.3 |
|
|
$ |
55.2 |
|
|
$ |
60.4 |
|
|
$ |
54.1 |
|
| Interest element of rentals |
|
|
2.1 |
|
|
|
2.2 |
|
|
|
2.9 |
|
|
|
2.7 |
|
|
|
2.4 |
|
|
|
2.7 |
|
|
|
2.7 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Total fixed charges |
|
$ |
40.3 |
|
|
$ |
40.5 |
|
|
$ |
54.7 |
|
|
$ |
58.0 |
|
|
$ |
57.6 |
|
|
$ |
63.1 |
|
|
$ |
56.8 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Total adjusted earnings available for payment of fixed charges |
|
$ |
557.0 |
|
|
$ |
498.0 |
|
|
$ |
685.6 |
|
|
$ |
584.2 |
|
|
$ |
517.8 |
|
|
$ |
481.0 |
|
|
$ |
336.2 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Ratio of earnings to fixed charges |
|
|
13.8 |
|
|
|
12.3 |
|
|
|
12.5 |
|
|
|
10.1 |
|
|
|
9.0 |
|
|
|
7.6 |
|
|
|
5.9 |
|
Exhibit 23(a)
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the
incorporation by reference in this Registration Statement on Form S-3 of our reports dated February 12, 2015, relating to the consolidated financial statements of Snap-on Incorporated and the effectiveness of Snap-on Incorporated’s
internal control over financial reporting, appearing in the Annual Report on Form 10-K of Snap-on Incorporated for the year ended January 3, 2015, and to the reference to us under the heading “Experts” in the Prospectus, which is a
part of this Registration Statement.
/s/ Deloitte & Touche
LLP
DELOITTE & TOUCHE LLP
Milwaukee, Wisconsin
December 11, 2015
Exhibit 25
Securities Act of 1933 Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF
ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
| ¨ |
Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2) |
U.S. BANK NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
31-0841368
(I.R.S. Employer Identification No.)
|
|
|
| 800 Nicollet Mall Minneapolis, Minnesota |
|
55402 |
| (Address of principal executive offices) |
|
(Zip Code) |
Gene E. Ploeger
U.S. Bank National Association
1555 North RiverCenter Drive, Suite 203
Milwaukee, WI 53212
(414) 905-5008
(Name, address and telephone number of agent for service)
Snap-on Incorporated
(Exact name of obligor as specified in its charter)
|
|
|
| Delaware |
|
39-0622040 |
| (State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. Employer Identification No.) |
|
|
|
| 2801 80th Street, Kenosha, Wisconsin |
|
53143 |
| (Address of Principal Executive Offices) |
|
(Zip Code) |
Indenture Debt Securities Dated as of January 8, 2007
(Title of the indenture securities)
FORM T-1
| Item 1. |
GENERAL INFORMATION. Furnish the following information as to the Trustee. |
| |
a) |
Name and address of each examining or supervising authority to which it is subject. |
Comptroller of the Currency
Washington, D.C.
| |
b) |
Whether it is authorized to exercise corporate trust powers. |
Yes
| Item 2. |
AFFILIATIONS WITH OBLIGOR. If the obligor is an affiliate of the Trustee, describe each such affiliation.
|
None
| Items 3-15 |
Items 3-15 are not applicable because to the best of the Trustee’s knowledge, the obligor is not in default under any Indenture for
which the Trustee acts as Trustee. |
| Item 16. |
LIST OF EXHIBITS: List below all exhibits filed as a part of this statement of eligibility and qualification.
|
| |
1. |
A copy of the Articles of Association of the Trustee as now in effect.* |
| |
2. |
A copy of the certificate of authority of the Trustee to commence business, attached as Exhibit 2. |
| |
3. |
A copy of the certificate of authority of the Trustee to exercise corporate trust powers, attached as Exhibit 3. |
| |
4. |
A copy of the existing bylaws of the Trustee.** |
| |
5. |
A copy of each Indenture referred to in Item 4. Not applicable. |
| |
6. |
The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939, attached as Exhibit 6. |
| |
7. |
Report of Condition of the Trustee as of September 30, 2015, published pursuant to law or the requirements of its supervising or examining
authority, attached as Exhibit 7. |
| * |
Incorporated by reference to Exhibit 25.1 to Amendment No. 2 to registration statement on Form S-4, Registration Number 333-128217, filed on
November 15, 2005. |
| ** |
Incorporated by reference to Exhibit 25.1 to registration statement on Form S-3, Number 333-201945, filed on February 6, 2015.
|
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the Trustee, U.S. BANK NATIONAL ASSOCIATION,
a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of
Milwaukee, State of Wisconsin, on the 9th day of December, 2015.
|
|
|
| U.S. BANK NATIONAL ASSOCIATION |
|
|
| By: |
|
/s/ Gene E. Ploeger |
|
|
Gene E. Ploeger |
|
|
Vice President |
Exhibit 2
Exhibit 3
Exhibit 6
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of 1939, the undersigned, U.S. BANK NATIONAL ASSOCIATION hereby
consents that reports of examination of the undersigned by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.
Dated: December 9, 2015
|
|
|
| U.S. BANK NATIONAL ASSOCIATION |
|
|
| By: |
|
/s/ Gene E. Ploeger |
|
|
Gene E. Ploeger |
|
|
Vice President |
Exhibit 7
U.S. Bank National Association
Statement of Financial Condition
As of 9/30/2015
($000’s)
|
|
|
|
|
| |
|
9/30/2015 |
|
| Assets |
|
|
|
|
| Cash and Balances Due From Depository Institutions |
|
$ |
10,415,443 |
|
| Securities |
|
|
104,656,800 |
|
| Federal Funds |
|
|
100,570 |
|
| Loans & Lease Financing Receivables |
|
|
254,216,913 |
|
| Fixed Assets |
|
|
4,639,396 |
|
| Intangible Assets |
|
|
12,997,753 |
|
| Other Assets |
|
|
23,862,998 |
|
|
|
|
|
|
| Total Assets |
|
$ |
410,889,873 |
|
|
|
| Liabilities |
|
|
|
|
| Deposits |
|
$ |
305,185,303 |
|
| Fed Funds |
|
|
1,491,858 |
|
| Treasury Demand Notes |
|
|
0 |
|
| Trading Liabilities |
|
|
1,227,900 |
|
| Other Borrowed Money |
|
|
45,698,345 |
|
| Acceptances |
|
|
0 |
|
| Subordinated Notes and Debentures |
|
|
3,150,000 |
|
| Other Liabilities |
|
|
11,782,630 |
|
|
|
|
|
|
| Total Liabilities |
|
$ |
368,536,036 |
|
|
|
| Equity |
|
|
|
|
| Common and Preferred Stock |
|
$ |
18,200 |
|
| Surplus |
|
|
14,266,400 |
|
| Undivided Profits |
|
|
27,210,891 |
|
| Minority Interest in Subsidiaries |
|
|
858,346 |
|
|
|
|
|
|
| Total Equity Capital |
|
$ |
42,353,837 |
|
|
|
| Total Liabilities and Equity Capital |
|
$ |
410,889,873 |
|
To the best of the undersigned’s determination, as of the date hereof, the above financial
information is true and correct.
|
|
|
| U.S. Bank National Association |
|
|
| By: |
|
/s/ Gene E. Ploeger |
|
|
Gene E. Ploeger |
|
|
Vice President |
|
|
| Date: |
|
December 9, 2015 |
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