As filed with the Securities and Exchange Commission on September 24, 2002
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------
H.B. Fuller Company
(Exact name of registrant as specified in its charter)
Minnesota 41-0268370
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1200 Willow Lake Boulevard
St. Paul, Minnesota 55110-5101
(651) 236-5900
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
Patricia Jones
Chief Administrative Officer, General Counsel and Corporate Secretary
1200 Willow Lake Boulevard
St. Paul, Minnesota 55110-5101
(651) 236-5900
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
-----------------
With a copy to:
Steven E. Suckow Sonia A. Shewchuk
H.B. Fuller Company Faegre & Benson LLP
1200 Willow Lake Boulevard 2200 Wells Fargo Center
St. Paul, Minnesota 90 South Seventh Street
55110-5101 Minneapolis, Minnesota
55402-3901
-----------------
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, 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 delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [X]
-----------------
CALCULATION OF REGISTRATION FEE(1)
--------------------------------------------------------------------------------
Proposed
Maximum Proposed Maximum
Title of Each Class of Amount to Be Offering Price Aggregate Amount of
Securities to Be Registered(2) Registered(3) Per Unit(4) Offering Price Registration Fee
-------------------------------------------------------------------------------------------------------------
Debt securities, preferred stock, par value
$.01 per share, common stock, par value
$1.00 per share (5), depositary shares and
securities warrants......................... $500,000,000 $500,000,000(6)(7) $46,000
--------------------------------------------------------------------------------------------------------------
(1) Estimated in accordance with Rule 457 solely for the purpose of calculating
the registration fee.
(2) Any securities registered hereunder may be sold separately or as units with
other securities registered hereunder.
(3) Includes such indeterminate number of shares of preferred stock, shares of
common stock, depositary shares and securities warrants as may be issued at
indeterminable prices, but with an aggregate initial offering price not to
exceed $500,000,000, plus such indeterminate number of shares of preferred
stock as may be issued upon exercise of securities warrants or in exchange
for, or upon conversion of, debt securities or shares of other preferred
stock registered hereunder, such indeterminate number of depositary shares
as may be issued upon exercise of securities warrants or upon conversion of
debt securities registered hereunder or in the event the registrant elects
to offer fractional interests in shares of preferred stock registered
hereunder, and such indeterminate number of shares of common stock as may
be issued upon exercise of securities warrants or in exchange for, or upon
conversion of, debt securities or shares of preferred stock registered
hereunder. Also includes such additional principal amount as may be
necessary such that, if debt securities are issued with an original issue
discount, the aggregate initial offering price of all debt securities will
equal $500,000,000 less the dollar amount of other securities previously
issued.
(4) Omitted pursuant to General Instruction II.D of Form S-3.
(5) Associated with the common stock are common share purchase rights that will
not be exercisable or evidenced separately from the common stock prior to
the occurrence of certain events.
(6) No separate consideration will be received for common stock, preferred
stock or depositary shares that are issued upon conversion of debt
securities, preferred stock or depositary shares.
(7) In U.S. dollars or the equivalent thereof in one or more foreign currencies
or composite currencies.
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
================================================================================
PROSPECTUS
[GRAPHIC]
H.B. Fuller
H.B. Fuller Company
1200 Willow Lake Boulevard
St. Paul, Minnesota 55110-5101
(651) 236-5900
$500,000,000
Debt Securities
Preferred Stock
Common Stock
Depositary Shares
Securities Warrants
-----------------
We will provide the specific terms of these securities in supplements to this
prospectus.
You should read this prospectus and the applicable supplement carefully before
you invest.
-----------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if
this prospectus is truthful or complete. Any representation to the contrary is
a criminal offense.
-----------------
This prospectus is dated ______________
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission using a "shelf" registration process. Under
this shelf process, we may sell:
. debt securities,
. preferred stock,
. common stock,
. depositary shares, and
. securities warrants,
either separately or in units, in one or more offerings up to a total dollar
amount of $500,000,000. This prospectus provides you with a general description
of those securities. Each time we sell securities, we will provide a prospectus
supplement that will contain specific information about the terms of that
offering. The prospectus supplement may also add, update or change information
contained in this prospectus. You should read this prospectus and the
applicable prospectus supplement together with the additional information
described under the heading "Where You Can Find More Information."
The registration statement that contains this prospectus (including the
exhibits to the registration statement) contains additional information about
our company and the securities offered under this prospectus. Statements
contained in this prospectus and the applicable prospectus supplement about the
provisions or content of any agreement or other document are only summaries. If
SEC rules require that any agreement or document be filed as an exhibit to the
registration statement, you should refer to that agreement or document for its
complete contents. That registration statement can be read at the SEC web site
or at the SEC offices mentioned under the heading "Where You Can Find More
Information."
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the Securities and Exchange Commission. Our SEC filings are
available to the public through the Internet at the SEC's web site at
http://www.sec.gov. You may also read and copy any document we file with the
SEC at its Public Reference Room at 450 Fifth Street, N.W., Washington, D.C.
20549. You can also obtain copies of the documents at prescribed rates by
writing to the Public Reference Section of the SEC at 450 Fifth Street, N.W.,
Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further
information on the operation of its Public Reference Room. Our SEC filings are
also available at the office of the National Association of Securities Dealers,
Inc. For more information on obtaining copies of our public filings at the
National Association of Securities Dealers, Inc., you should write to National
Association of Securities Dealers, Inc., 1735 K Street N.W., Washington, D.C.
20006.
We "incorporate by reference" into this prospectus the information we file
with the SEC, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus. Some information contained in this
prospectus updates the information incorporated by reference, and information
that we file subsequently with the SEC will automatically update this
prospectus. In other words, in the case of a conflict or inconsistency between
information set forth in this prospectus and information incorporated by
reference into this prospectus, you should rely on the information contained in
the document that was filed later. We incorporate by reference the documents
listed below and any filings we make with the SEC under Sections 13(a), 13(c),
14, or 15(d) of the Securities Exchange
2
Act of 1934 after the initial filing of the registration statement that
contains this prospectus and prior to the time that we sell all the securities
offered under this prospectus:
. Annual Report on Form 10-K for the year ended December 1, 2001
(including information specifically incorporated by reference into our
Form 10-K from our definitive Proxy Statement for our 2002 Annual
Meeting of Shareholders);
. Quarterly Reports on Form 10-Q for the quarters ended March 2, 2002 and
June 1, 2002;
. Current Reports on Form 8-K dated January 14, 2002, March 26, 2002, June
25, 2002, August 9, 2002 and September 24, 2002;
. the description of the Company's common stock contained in the
Registration Statement on Form 8-A dated July 30, 1996 and any amendment
or report filed for the purpose of updating that description; and
. the description of the Company's common share purchase rights contained
in the Registration Statement on Form 8-A filed July 24, 1996, as
amended by the Registration Statement on Form 8-A/A-1 filed February 5,
2001.
You may request a copy of these filings (other than an exhibit to a filing
unless that exhibit is specifically incorporated by reference into that filing)
at no cost, by writing to or telephoning us at the following address:
Corporate Secretary
H.B. Fuller Company
1200 Willow Lake Boulevard
P.O. Box 64683
St. Paul, Minnesota 55164-0683
(651) 236-5900
You should rely only on the information incorporated by reference or set
forth in this prospectus or the applicable prospectus supplement. We have not
authorized anyone else to provide you with additional or different information.
We may only use this prospectus to sell securities if it is accompanied by a
prospectus supplement. We are only offering these securities in states where
the offer is permitted. You should not assume that the information in this
prospectus or the applicable prospectus supplement is accurate as of any date
other than the dates on the front of those documents.
3
THE COMPANY
We are a worldwide manufacturer and marketer of adhesives and specialty
chemical products. We have sales operations in 43 countries in North America,
Europe, Latin America and the Asia/Pacific region and as of June 1, 2002
employed approximately 4,700 people.
Our largest business segment is comprised of industrial and performance
adhesives products, in thousands of formulations and sold to customers for
applications in various markets including assembly, packaging, converting,
nonwoven, automotive, graphic arts, and footwear. Adhesives represent nearly
70% of global revenues and are manufactured and distributed globally. This
business is managed on a worldwide basis and is reported as our Global
Adhesives operating segment.
We are also a producer and supplier of specialty chemical products for a
variety of applications such as ceramic tile application, HVAC insulation,
powder coatings applied to metal surfaces for office furniture, appliances and
lawn and garden equipment, specialty hot melt products for packaging
applications, consumer products and windows markets applications, as well as
liquid paint sold through retail outlets. These specialty chemical products
represent approximately 30% of global revenues and comprise our
Full-Valu/Specialty operating segment.
When we refer to "our company," "we," "our" and "us" in this prospectus
under the headings "The Company," "Use of Proceeds" and "Ratios of Earnings to
Fixed Charges and to Fixed Charges and Preferred Stock Dividends," we mean H.B.
Fuller Company and its subsidiaries. When these terms are used elsewhere in
this prospectus, we refer only to H.B. Fuller Company unless the context
indicates otherwise.
USE OF PROCEEDS
Unless the applicable prospectus supplement states otherwise, the net
proceeds from the sale of the offered securities will be added to our general
funds and may be used to:
. finance acquisitions of companies, real estate and other assets;
. meet our working capital requirements;
. fund capital expenditures; and
. refinance debt.
Until the net proceeds have been used, they will be invested in short-term
marketable securities.
4
RATIOS OF EARNINGS TO FIXED CHARGES AND TO FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
6 Months Fiscal Year Ended
Ended --------------------------------------------------------------
June 1, December 1, December 2, November 27, November 28, November 29,
2002 2001 2000 1999 1998 1997
-------- ----------- ----------- ------------ ------------ ------------
Ratio of Earnings to Fixed
Charges*................... 2.3 3.8 4.1 3.6 2.1 3.9
Ratio of Earnings to Fixed
Charges and Preferred Stock
Dividends*................. 2.3 3.8 4.1 3.6 2.1 3.9
--------
* The earnings for the six months ended June 1, 2002 and the fiscal years
ended December 1, 2001, November 27, 1999 and November 28, 1998, included
charges related to restructuring plans of $14,297,000, $1,564,000,
$17,204,000 and $26,747,000, respectively.
For purposes of calculating the ratios, earnings consist of:
. income from continuing operations before minority interests, earnings
(losses) in equity investments, cumulative effect of an accounting
change and income taxes;
. amortization of capitalized interest;
. distributed earnings of unconsolidated subsidiaries; and
. fixed charges,
and exclude capitalized interest.
For purposes of calculating the ratios, fixed charges consist of:
. interest on debt, both expensed and capitalized;
. amortization of discount on debt; and
. the interest portion of rental expense on operating leases.
The ratio of earnings to fixed charges is calculated as follows:
(earnings)
----------
(fixed charges)
The ratio of earnings to fixed charges and preferred stock dividends is
calculated as follows:
(earnings)
-------------------------------------------------------
(fixed charges) + (pretax earnings required to cover preferred stock dividends)
Pretax earnings required to cover preferred stock dividends are calculated as
follows:
preferred stock dividends
-------------------------
1 - (our statutory income tax rate)
5
DESCRIPTION OF DEBT SECURITIES
This section describes the general terms and provisions of the debt
securities. The prospectus supplement will describe the specific terms of the
debt securities offered through that prospectus supplement and any general
terms outlined in this section that will not apply to those debt securities.
The debt securities will be issued under an indenture between us and the
trustee named in the applicable prospectus supplement. As used in this
prospectus, "debt securities" means the debentures, notes, bonds and other
evidences of indebtedness that we issue and the trustee authenticates and
delivers under the indenture.
We have summarized the material terms and provisions of the indenture in
this section. We have also filed the form of the indenture as an exhibit to the
registration statement. You should read the indenture for additional
information before you buy any debt securities. The summary that follows
includes references to section numbers of the indenture so that you can more
easily locate these provisions.
General
The debt securities will be our direct, senior and unsecured obligations and
will rank equally with all of our other unsecured and unsubordinated
indebtedness. The indenture does not limit the amount of debt securities that
we may issue. The indenture permits us to issue debt securities from time to
time, and debt securities issued under the indenture will be issued as part of
a series that has been established by us under the indenture. (Section 301)
Unless a prospectus supplement relating to debt securities states otherwise,
the indenture and the terms of the debt securities will not contain any
covenants designed to afford holders of any debt securities protection in a
highly leveraged or other transaction involving us that may adversely affect
holders of the debt securities.
If we ever issue bearer securities, we will summarize provisions of the
indenture that relate to bearer securities in the applicable prospectus
supplement.
A prospectus supplement relating to a series of debt securities being
offered will include specific terms relating to the offering. (Section 301)
These terms will include some or all of the following:
. the title and type of the debt securities;
. any limit on the total principal amount of the debt securities;
. the price at which the debt securities will be issued;
. the date or dates on which the principal of and premium, if any, on the
debt securities will be payable;
. the maturity date or dates of the debt securities or the method by which
those dates can be determined;
. if the debt securities will bear interest:
. the interest rate on the debt securities or the method by which the
interest rate may be determined;
. the date from which interest will accrue;
. the record and interest payment dates for the debt securities;
. the first interest payment date; and
. any circumstances under which we may defer interest payments;
. if the amount of principal or interest payable on the debt securities
will be determined by reference to one or more currency exchange rates,
securities or baskets of securities, commodity prices or indices,
information as to such currencies, securities, commodities or indices;
6
. any optional redemption provisions that would permit us or the holders
of debt securities to elect redemption of the debt securities prior to
their final maturity;
. any sinking fund provisions that would obligate us to redeem the debt
securities prior to their final maturity;
. whether the debt securities will be convertible into or exchangeable for
shares of common stock, shares of preferred stock, depositary shares or
other debt securities and, if so, the terms and conditions of any such
conversion or exchange, and, if convertible or exchangeable into shares
of preferred stock, depositary shares or other debt securities, the
terms of such preferred stock, depositary shares or other debt
securities;
. any terms on which the debt securities may be optionally or mandatorily
converted or exchanged into or for stock or other securities of an
entity unaffiliated with us, any specific terms relating to the
adjustment of the conversion or exchange feature and the period during
which the holders may make the conversion or the exchange;
. the currency or currencies in which the debt securities will be
denominated and payable, if other than U.S. dollars and, if a composite
currency, any special provisions relating thereto;
. any provisions that would permit us or the holders of the debt
securities to elect the currency or currencies in which the debt
securities are paid;
. whether the provisions described below under the heading "Defeasance"
apply to the debt securities;
. any changes or additions to or deletions of the events of default or
covenants contained in the indenture;
. whether the debt securities will be issued in whole or in part in the
form of global securities and, if so, the depositary for those global
securities and a description of any book-entry procedures relating to
the global securities--a "global security" means a debt security that we
issue in accordance with the indenture to represent all or part of a
series of debt securities;
. if we issue temporary global securities, any special provisions dealing
with the payment of interest and any terms relating to the ability to
exchange interests in a temporary global security for interests in a
permanent global security or for definitive debt securities;
. the identity of the security registrar and paying agent for the debt
securities if other than the trustee;
. any special tax implications of the debt securities;
. any special provisions relating to the payment of any additional amounts
on the debt securities;
. the terms of any securities being offered together with or separately
from the debt securities; and
. any other terms of the debt securities.
A "holder," with respect to a registered security, means the person in whose
name the registered security is registered in the security register. (Section
101)
Payment; Transfer
We will designate a place of payment where you can receive payment of the
principal of and any premium and interest on the debt securities or transfer
the debt securities. Even though we will designate a place of payment, we may
elect to pay any interest on the debt securities:
. by mailing a check to the person listed as the owner of the debt
securities in the security register; or
. by wire transfer to an account designated by that person in writing not
less than ten days before the date of the interest payment. (Sections
305, 307, 1002)
7
There will be no service charge for any registration of transfer or exchange of
the debt securities, but we may require you to pay any tax or other
governmental charge payable in connection with a transfer or exchange of the
debt securities. (Section 305)
Denominations
Unless the prospectus supplement states otherwise, the debt securities will
be issued only in registered form, without coupons, in denominations of $1,000
each or multiples of $1,000.
Original Issue Discount
Debt securities may be issued under the indenture as original issue discount
securities and sold at a substantial discount below their stated principal
amount. If a debt security is an "original issue discount security," that means
that an amount less than the principal amount of the debt security will be due
and payable upon a declaration of acceleration of the maturity of the debt
security under the indenture. (Section 101) The applicable prospectus
supplement will describe the federal income tax consequences and other special
factors which should be considered prior to purchasing any original issue
discount securities.
Conversion and Exchange
If any offered debt securities are convertible into preferred stock,
depositary shares or common stock at the option of the holders or exchangeable
for preferred stock, depositary shares or common stock at our option, the
prospectus supplement relating to those debt securities will include the terms
and conditions covering any conversions or exchanges.
Classification of Restricted and Unrestricted Subsidiaries
The indenture contains restrictive covenants that apply to us and all of our
restricted subsidiaries. Those covenants do not apply to our unrestricted
subsidiaries. For example, the debt of unrestricted subsidiaries is not
included in the calculations described under the heading "--Restrictions on
Secured Debt" below. The indenture does not require us to maintain any
restricted subsidiaries and, if we do not, the indenture will not provide any
limitations on the amount of secured debt created or incurred by our
subsidiaries.
A "subsidiary" is any corporation of which we own more than 50% of the
outstanding shares of voting stock, except for directors' qualifying shares,
directly or through one or more of our other subsidiaries. "Voting stock" means
stock that is entitled in the ordinary course (i.e., not only as a result of
the happening of certain events) to vote in an election for directors.
"Restricted subsidiaries" are all of our subsidiaries other than
unrestricted subsidiaries. A "wholly-owned restricted subsidiary" is a
restricted subsidiary of which we own all of the outstanding capital stock
directly or through our other wholly-owned restricted subsidiaries.
Our "unrestricted subsidiaries" are:
. any subsidiary substantially all of the physical properties of which are
located, or substantially all of the business of which is carried on,
outside of the United States of America;
. certain finance subsidiaries acquired or formed by us after the date of
this prospectus;
. any subsidiary that our board of directors in the future designates as
an unrestricted subsidiary under the indenture; and
. any other subsidiary if a majority of its voting stock is owned by an
unrestricted subsidiary.
8
Our board of directors can at any time change a subsidiary's designation from
an unrestricted subsidiary to a restricted subsidiary if:
. the majority of that subsidiary's voting stock is not owned by an
unrestricted subsidiary, and
. after the change of designation, we would be in compliance with the
restrictions contained in the secured debt covenant described under the
heading "--Restrictions on Secured Debt" below. (Sections 101, 1010(a))
Restrictions on Secured Debt
The indenture limits the amount of secured debt that we and our restricted
subsidiaries may incur or otherwise create. Neither we nor our restricted
subsidiaries may incur or otherwise create any new secured debt unless
immediately after the incurrence or creation:
. the sum of:
. the aggregate principal amount of all of our outstanding secured debt
and that of our restricted subsidiaries (other than certain
categories of secured debt discussed below), plus
. the aggregate amount of our attributable debt and that of our
restricted subsidiaries relating to sale and leaseback transactions
(other than sale and leaseback transactions permitted as a result of
voluntary retirements of debt in the manner described under the
second bullet point under the heading "--Restrictions on Sale and
Leaseback Transactions" below),
. does not exceed 10% of our consolidated net tangible assets.
This limitation does not apply if the outstanding debt securities are secured
equally and ratably with or prior to the new secured debt. (Sections 1008(a),
1008(c))
"Secured debt" means debt which is secured by a mortgage, lien or other
similar encumbrance upon any of our operating property or the operating
property of a restricted subsidiary or shares of stock or debt issued by a
restricted subsidiary and owned by us or a restricted subsidiary. (Section 101)
"Debt" means notes, bonds, debentures or other similar evidences of
indebtedness for money borrowed.
"Operating property" means any manufacturing facility, distribution center
or other property related to our manufacturing business, or that of one of our
subsidiaries, located within the United States of America, if such property has
been owned and operated by us or one of our subsidiaries for more than 90 days.
If we acquire a new subsidiary that already owns and operates this type of
property, then the property will not be considered operating property until 90
days after the acquisition. In addition, if we determine that this type of
property is not of material importance to the total business conducted by us
and our subsidiaries taken as a whole, then such property will not be
considered operating property. (Section 101)
"Attributable debt" in respect of any sale and leaseback transaction means
the amount of future minimum lease payments required to be paid by the lessee
under such lease, less any amounts required to be paid on account of
maintenance and repairs, services, insurance, taxes, assessments, water rates
and similar charges and contingent rents (such as those based on sales),
discounted using the methodology used to calculate the present value of lease
payments in our most recent Annual Report to Shareholders reflecting that
calculation.
The amount of attributable debt relating to a lease that can be terminated by
the lessee with the payment of a penalty will be calculated based on the lesser
of:
. the aggregate amount of lease payments required to be made until the
first date the lease can be terminated by the lessee plus the amount of
the penalty, or
9
. the aggregate amount of lease payments required to be made during the
remaining term of the lease. (Section 101)
"Consolidated net tangible assets" means the total amount of assets (minus
applicable reserves and other properly deductible items), minus
. all current liabilities (other than those which are by their terms
extendible or renewable at the option of the obligor to a time more than
12 months after the date the amount is being computed), and
. all goodwill, trade names, trademarks, patents, unamortized debt
discount and expense and other similar intangibles,
all as set forth on our most recent consolidated balance sheet and computed in
accordance with generally accepted accounting principles. (Section 101)
The following categories of secured debt will not be considered in
determining whether we are in compliance with the covenant described in the
first paragraph under the heading "Restrictions on Secured Debt":
. secured debt of a restricted subsidiary owing to us or to one of our
wholly-owned restricted subsidiaries or our secured debt owed to a
wholly-owned restricted subsidiary;
. secured debt resulting from a mortgage, lien or other similar
encumbrance in favor of the U.S. Government or any State or any
instrumentality thereof to secure certain payments;
. secured debt resulting from a mortgage, lien or other similar
encumbrance on property, shares of stock or debt of any company existing
at the time that the company becomes one of our subsidiaries;
. secured debt resulting from a mortgage, lien or other similar
encumbrance on property, shares of stock or debt which (1) exists at the
time that the property, shares of stock or debt is acquired by us or one
of our restricted subsidiaries, including acquisitions by merger or
consolidation, (2) secures the payment of any part of the purchase price
of or construction cost for the property, shares of stock or debt or
(3) secures any indebtedness incurred prior to, at the time of, or
within 180 days after, the latest of the acquisition of the property,
shares of stock or debt or the completion of any construction of the
property for the purpose of financing all or a part of the purchase
price or construction cost of the property, shares of stock or debt,
provided that, in all cases, we continue to comply with the covenant
relating to mergers and consolidations discussed under the heading
"--Consolidation, Merger or Sale" below;
. secured debt secured by a mortgage, lien or other similar encumbrance in
connection with the issuance of revenue bonds on which the interest is
exempt from federal income tax under the Internal Revenue Code of 1986;
. secured debt existing on the date of initial issuance of the applicable
debt securities; and
. any extension, renewal or refunding (but without increase in amount) of
any secured debt permitted under the six previous bullet points.
(Section 1008(b))
Restrictions on Sale and Leaseback Transactions
The indenture provides that neither we nor any of our restricted
subsidiaries may enter into any sale and leaseback transaction involving any
operating property more than 120 days after its acquisition or the completion
of its construction and commencement of its full operation, unless either:
. we or the restricted subsidiary could (1) create secured debt on the
property equal to the attributable debt with respect to the sale and
leaseback transaction and (2) still be in compliance with the
restrictions on secured debt (see "--Restrictions on Secured Debt"
above); or
10
. we apply or cause a restricted subsidiary to apply an amount, subject to
credits for certain voluntary retirements of debt securities and/or debt
having a stated maturity more than 12 months from the date of
application or which is extendible at the option of the obligor to a
date more than 12 months from the date of application, equal to the
greater of:
. the fair value of the property, or
. the net proceeds of the sale,
within 180 days, to the retirement of debt.
This restriction will not apply to any sale and leaseback transaction:
. between us and one of our restricted subsidiaries,
. between any of our restricted subsidiaries, or
. involving a lease for a period, including renewals, of three years or
less. (Section 1009)
Consolidation, Merger or Sale
The indenture generally permits a consolidation or merger between us and
another corporation. It also permits the sale or transfer by us of all or
substantially all of our property and assets and the purchase by us of all or
substantially all of the property and assets of another corporation. These
transactions are permitted if:
. the resulting or acquiring corporation, if other than us, assumes all of
our responsibilities and liabilities under the indenture, including the
payment of all amounts due on the debt securities and performance of the
covenants in the indenture; and
. immediately after the transaction, no event of default exists.
Even though the indenture contains the provisions described above, we are
not required by the indenture to comply with those provisions if we sell all of
our property and assets to another corporation if, immediately after the sale:
. that corporation is one of our wholly-owned restricted subsidiaries; and
. we could incur additional secured debt and still be in compliance with
the restrictions on secured debt (see "--Restrictions on Secured Debt"
above). (Section 803)
If we consolidate or merge with or into any other corporation or sell all or
substantially all of our assets according to the terms and conditions of the
indenture, the resulting or acquiring corporation will be substituted for us in
the indenture with the same effect as if it had been an original party to the
indenture. As a result, the successor corporation may exercise our rights and
powers under the indenture, in our name or in its own name and we will be
released from all our liabilities and obligations under the indenture and under
the debt securities. (Section 802)
Modification and Waiver
Under the indenture, we and the trustee can modify or amend the indenture
with the consent of the holders of a majority in aggregate principal amount of
the outstanding debt securities of all series of debt securities affected by
the modification or amendment, acting as one class. However, we may not,
without the consent of the holder of each debt security affected:
. change the stated maturity date of any payment of principal or interest;
. reduce certain payments due on the debt securities;
11
. change the place of payment or currency in which any payment on the debt
securities is payable;
. limit a holder's right to sue us for the enforcement of certain payments
due on the debt securities;
. reduce the percentage of outstanding debt securities required to consent
to a modification or amendment of the indenture;
. limit a holder's right, if any, to repayment of debt securities at the
holder's option; or
. modify any of the foregoing requirements or reduce the percentage of
outstanding debt securities required to waive compliance with certain
provisions of the indenture or to waive certain defaults under the
indenture. (Section 902)
Under the indenture, the holders of a majority in aggregate principal amount
of the outstanding debt securities of all series of debt securities affected by
a particular covenant or condition, acting as one class, may on behalf of all
holders of such series waive compliance by us with certain restrictive
covenants or conditions of the indenture. (Section 1012)
In addition, under the indenture, the holders of a majority in aggregate
principal amount of the outstanding debt securities of any series may, on
behalf of all holders of that series, waive any past default under the
indenture, except:
. a default in the payment of the principal of or any premium or interest
on any debt securities of that series; or
. a default under any provision of the indenture which itself cannot be
modified or amended without the consent of the holders of each
outstanding debt security of that series. (Section 513)
Events of Default
Unless otherwise stated in the applicable prospectus supplement, an "event
of default," when used with respect to any series of debt securities, means any
of the following:
. failure to pay interest on any debt security of that series for 30 days
after the payment is due;
. failure to pay the principal of or any premium on any debt security of
that series when due;
. failure to deposit any sinking fund payment on debt securities of that
series when due;
. failure to perform any other covenant in the indenture that applies to
debt securities of that series for 90 days after we have received
written notice of the failure to perform in the manner specified in the
indenture;
. default under any debt, including other series of debt securities, or
under any mortgage, lien or other similar encumbrance, indenture or
instrument, including the indenture, which secures any debt, and which
results in acceleration of the maturity of an outstanding principal
amount of debt greater than $50 million, unless the acceleration is
rescinded, or the debt is discharged, within 10 days after we have
received written notice of the default in the manner specified in the
indenture;
. certain events in bankruptcy, insolvency or reorganization; or
. any other event of default that may be specified for the debt securities
of that series when that series is created. (Section 501)
If an event of default for any series of debt securities occurs and
continues, the trustee or the holders of at least 25% in aggregate principal
amount of the outstanding debt securities of the series may declare the entire
principal of all the debt securities of that series to be due and payable
immediately. If a declaration occurs, the holders of a majority of the
aggregate principal amount of the outstanding debt securities of that series
can, subject to certain conditions, rescind the declaration. (Sections 502, 513)
12
The prospectus supplement relating to each series of debt securities which
are original issue discount securities will describe the particular provisions
that relate to the acceleration of maturity of a portion of the principal
amount of that series when an event of default occurs and continues.
An event of default for a particular series of debt securities does not
necessarily constitute an event of default for any other series of debt
securities issued under the indenture.
The indenture requires us to file an officers' certificate with the trustee
each year that states that certain defaults do not exist under the terms of the
indenture. (Section 1011) The trustee may withhold notice to the holders of
debt securities of any default, except defaults in the payment of principal,
premium, interest or any sinking fund installment, if it considers the
withholding of notice to be in the best interests of the holders. (Section 602)
Other than its duties in the case of a default, a trustee is not obligated
to exercise any of its rights or powers under the indenture at the request,
order or direction of any holders, unless the holders offer the trustee
reasonable indemnification. (Sections 601, 603) If reasonable indemnification
is provided, then, subject to certain other rights of the trustee, the holders
of a majority in principal amount of the outstanding debt securities of any
series may, with respect to the debt securities of that series, direct the
time, method and place of:
. conducting any proceeding for any remedy available to the trustee; or
. exercising any trust or power conferred upon the trustee. (Sections 512,
603)
The holder of a debt security of any series will have the right to begin any
proceeding with respect to the indenture or for any remedy only if:
. the holder has previously given the trustee written notice of a
continuing event of default with respect to that series;
. the holders of at least 25% in aggregate principal amount of the
outstanding debt securities of that series have made a written request
of, and offered reasonable indemnification to, the trustee to begin the
proceeding;
. the trustee has not started the proceeding within 60 days after
receiving the request; and
. the trustee has not received directions inconsistent with the request
from the holders of a majority in aggregate principal amount of the
outstanding debt securities of that series during those 60 days.
(Section 507)
However, the holder of any debt security will have an absolute right to receive
payment of principal of and any premium and interest on the debt security when
due and to institute suit to enforce the payment. (Section 508)
Defeasance
Defeasance and Discharge. At the time that we establish a series of debt
securities under the indenture, we can provide that the debt securities of that
series are subject to the defeasance and discharge provisions of the indenture.
If we so provide, we will be discharged from our obligations on the debt
securities of that series if we deposit with the trustee, in trust, sufficient
money or government obligations to pay the principal, interest, any premium and
any other sums due on the debt securities of that series, such as sinking fund
payments, on the dates the payments are due under the indenture and the terms
of the debt securities. (Section 403) As used above, "government obligations"
mean:
. securities of the same government which issued the currency in which the
series of debt securities are denominated and in which interest is
payable; or
13
. securities of government agencies backed by the full faith and credit of
that government. (Section 101)
In the event that we deposit funds in trust and discharge our obligations
under a series of debt securities as described above, then:
. the indenture will no longer apply to the debt securities of that series
(except for obligations to compensate, reimburse and indemnify the
trustee, to register the transfer and exchange of debt securities, to
replace lost, stolen or mutilated debt securities and to maintain paying
agencies and the trust funds); and
. holders of debt securities of that series can only look to the trust
fund for payment of principal, any premium and interest on the debt
securities of that series. (Section 403)
Under federal income tax law, a deposit and discharge as described above may
be treated as an exchange of the related debt securities for an interest in the
trust mentioned above. Each holder might be required to recognize gain or loss
equal to the difference between:
. the holder's cost or other tax basis for the debt securities, and
. the value of the holder's interest in the trust.
Holders might be required to include in income a share of the income, gain or
loss of the trust, including gain or loss recognized in connection with any
substitution of collateral, as described in this section under the heading
"--Substitution of Collateral" below. You are urged to consult your own tax
advisers as to the specific consequences of a deposit and discharge as
described above, including the applicability and effect of tax laws other than
federal income tax law.
Defeasance of Certain Covenants and Certain Events of Default. At the time
that we establish a series of debt securities under the indenture, we can
provide that the debt securities of that series are subject to the covenant
defeasance provisions of the indenture. If we so provide and we make the
deposit described in this section under the heading "--Defeasance and
Discharge" above:
. we will not have to comply with the following restrictive covenants
contained in the indenture:
. Consolidation, Merger or Sale (Sections 801, 803);
. Restrictions on Secured Debt (Section 1008);
. Restrictions on Sale and Leaseback Transactions (Section 1009);
. Classification of Restricted and Unrestricted Subsidiaries (Section
1010); and
. any other covenant we designate when we establish the series of debt
securities; and
. we will not have to treat the events described in the fourth bullet
point under the heading "--Events of Default" as they relate to the
covenants listed above that have been defeased and no longer are in
effect and the events described in the fifth, sixth and seventh bullet
points under the heading "--Events of Default" as events of default
under the indenture in connection with that series.
In the event of a defeasance, our obligations under the indenture and the
debt securities, other than with respect to the covenants and the events of
default specifically referred to above, will remain in effect. (Section 1501)
If we exercise our option not to comply with the certain covenants listed
above and the debt securities of that series become immediately due and payable
because an event of default has occurred, other than as a result of an event of
default specifically referred to above, the amount of money and/or government
obligations on deposit with the trustee will be sufficient to pay the
principal, interest, any premium and any other sums, due on the debt securities
of that series (such as sinking fund payments) on the date the payments are due
under the indenture and the terms of the debt securities, but may not be
sufficient to pay amounts due at the time of acceleration. However, we would
remain liable for the balance of the payments. (Section 1501)
14
Substitution of Collateral. At the time that we establish a series of debt
securities under the indenture, we can provide for our ability to, at any time,
withdraw any money or government obligations deposited under the defeasance
provisions described above if we simultaneously substitute other money and/or
government obligations which would satisfy our payment obligations on the debt
securities of that series under the defeasance provisions applicable to those
debt securities. (Section 402)
DESCRIPTION OF PREFERRED STOCK
This section describes the general terms and provisions of our preferred
stock that may be offered under this prospectus. The prospectus supplement will
describe the specific terms of the series of preferred stock offered through
that prospectus supplement and any general terms outlined in this section that
will not apply to that series of preferred stock.
We have summarized the material terms and provisions of the preferred stock
in this section. We have also filed our restated articles of incorporation and
a form of certificate of designation, preferences and rights of preferred
stock, which we will refer to as the "certificate of designation," as exhibits
to the registration statement. You should read our restated articles of
incorporation and the certificate of designation relating to the applicable
series of the preferred stock for additional information before you buy any
preferred stock.
General
Under our restated articles of incorporation, our board of directors has the
authority, without further shareholder action, to issue a maximum of 10,045,900
shares of preferred stock, including shares issued or reserved for issuance. As
of June 1, 2002, all 10,045,900 shares were undesignated and available for
issuance.
The board of directors has the authority to determine or fix the following
terms with respect to shares of any series of preferred stock to be issued in
the future:
. the number of shares and designation or title of the shares;
. dividend rights;
. whether and upon what terms the shares will be redeemable;
. whether and upon what terms the shares will have a purchase, retirement
or sinking fund;
. the rights of holders upon our dissolution or upon the distribution of
our assets;
. whether and upon what terms the shares will be convertible;
. voting rights, if any; and
. any other preferences, rights, limitations or restrictions of the series.
If we purchase, redeem, or convert shares of preferred stock, we will retire
and cancel them and restore them to the status of authorized but unissued
shares of preferred stock. Those shares will not be part of any particular
series of preferred stock and may be reissued by us.
As described under "Description of Depositary Shares" below, we may elect to
offer depositary shares represented by depositary receipts. If we so elect,
each depositary share will represent a fractional interest, to be specified in
the applicable prospectus supplement, in a share of preferred stock. If we
issue depositary shares representing interests in preferred stock, those shares
of preferred stock will be deposited with a depositary.
The preferred stock offered under this prospectus will have the dividend,
liquidation, redemption, voting and conversion rights described in this section
unless the applicable prospectus supplement provides otherwise. You
15
should read the prospectus supplement relating to the particular series of
preferred stock it offers for specific terms, including:
. the title and liquidation preference of the preferred stock and the
number of shares offered;
. the initial public offering price at which we will issue the preferred
stock;
. the dividend rate or rates (or method of calculation), the dividend
periods, the dates on which dividends will be payable and whether the
dividends will be cumulative or noncumulative and, if cumulative, the
dates from which the dividends will start to cumulate;
. any redemption or sinking fund provisions;
. any conversion provisions;
. whether we have elected to offer depositary shares as described under
"Description of Depositary Shares" below; and
. any additional dividend, liquidation, redemption, sinking fund, and
other rights, preferences, privileges, limitations and restrictions.
When we issue shares of preferred stock, they will be fully paid and
nonassessable. This means you will have paid the full purchase price for your
shares of preferred stock and you will not be assessed any additional amount
for your stock. Unless the applicable prospectus supplement specifies otherwise:
. each series of preferred stock offered under this prospectus will rank
equally in all respects with the outstanding shares of any other series
of preferred stock offered under this prospectus;
. the preferred stock offered under this prospectus will have no
preemptive rights to subscribe for any additional securities that we may
issue in the future, which means that the holders of those shares of
preferred stock will have no right, as holders of shares of preferred
stock, to buy any portion of those future securities; and
. Wells Fargo Bank Minnesota, N.A. will be the transfer agent and
registrar for the preferred stock offered under this prospectus and any
depositary shares.
Dividends
The holders of the preferred stock of each series offered under this
prospectus will be entitled to receive cash dividends, if declared by our board
of directors or its authorized committee, out of our assets that we can legally
use to pay dividends. The applicable prospectus supplement relating to a
particular series of preferred stock will describe the dividend rates and dates
on which dividends will be payable. The rates may be fixed or variable or both.
If the dividend rate is variable, the applicable prospectus supplement will
describe the formula used for determining the dividend rate for each dividend
period. We will pay dividends to the holders of record as they appear on our
stock books on the record dates fixed by our board of directors or its
authorized committee.
The applicable prospectus supplement will also state whether the dividends
on any series of the preferred stock offered under this prospectus are
cumulative or noncumulative. If our board of directors does not declare a
dividend payable on a dividend payment date on any noncumulative series of
preferred stock, then the holders of that series will not be entitled to
receive a dividend for that dividend period and we will not be obligated to pay
the dividend for that dividend period, even if our board declares a dividend on
that series payable in the future.
Our board of directors will not declare and pay a dividend on any of our
stock ranking, as to dividends, equal with or junior to the preferred stock
offered under this prospectus unless full dividends on that preferred stock
have been declared and paid, or declared and sufficient money is set aside for
payment. Until full dividends are paid, or declared and payment is set aside,
on all preferred stock ranking equal as to dividends, then:
. we will declare any dividends pro rata among the shares of preferred
stock of each series offered under this prospectus and any other series
of preferred stock ranking equal to that series of preferred stock
16
offered under this prospectus as to dividends, which means that the
dividends we declare per share on each series of such preferred stock
will bear the same relationship to each other that the full accrued
dividends per share on each such series of the preferred stock bear to
each other;
. other than the above-described pro rata dividends, we will not declare
or pay any dividends or declare or make any distributions upon any
security ranking junior to or equal with the preferred stock offered
under this prospectus as to dividends or upon liquidation, except
dividends or distributions paid in securities ranking junior to that
preferred stock as to dividends and upon liquidation; and
. we will not redeem, purchase or otherwise acquire, or set aside money
for a sinking fund for, any securities ranking junior to or equal with
the preferred stock offered under this prospectus as to dividends or
upon liquidation, except by conversion into or exchange for stock junior
to that preferred stock as to dividends and upon liquidation.
We will not owe any interest, or any money in lieu of interest, on any
dividend payments on any series of the preferred stock offered under this
prospectus that may be past due.
Redemption
We may redeem all or part of a series of the preferred stock offered under
this prospectus, and that series may be subject to mandatory redemption under a
sinking fund or otherwise, as described in the applicable prospectus
supplement. Redeemed shares of preferred stock will become authorized but
unissued shares of preferred stock that we may issue in the future.
If a series of preferred stock is subject to mandatory redemption, the
applicable prospectus supplement will specify the number of shares that we will
redeem each year and the redemption price. If shares of preferred stock are
redeemed, we will pay all accrued and unpaid dividends on those shares to, but
excluding, the redemption date. The applicable prospectus supplement will also
specify whether the redemption price will be paid in cash or other property. If
. we are only permitted to pay the redemption price for a series of
preferred stock from the proceeds of a capital stock issuance, and
. the proceeds from the issuance are insufficient or no issuance has
occurred,
then the terms of that series may provide that the preferred stock will
automatically and mandatorily be converted into that capital stock.
If fewer than all of the outstanding shares of any series of the preferred
stock are to be redeemed, our board of directors will determine the number of
shares to be redeemed. We will redeem the shares pro rata from the holders of
record in proportion to the number of shares held by them, with adjustments to
avoid redemption of fractional shares.
Even if the terms of a series of preferred stock permit redemption of all or
a part of the preferred stock, if any dividends, including accumulated
dividends, on that series are past due:
. we will not redeem any preferred stock of that series unless we
simultaneously redeem all outstanding preferred stock of that series; and
. we will not purchase or otherwise acquire any preferred stock of that
series.
This prohibition will not prohibit us from purchasing or acquiring preferred
stock of that series under a purchase or exchange offer if we make the offer on
the same terms to all holders of that series.
Unless the applicable prospectus supplement specifies otherwise, we will
give notice of a redemption by mailing a notice to each record holder of the
shares to be redeemed, between 30 to 60 days before the date fixed
17
for redemption (unless we issue depositary shares representing interests in
shares of preferred stock, in which case we will send a notice to the
depositary between 40 to 70 days before the date fixed for redemption). We will
mail the notices to the holders' addresses as they appear on our stock records.
Each notice will state:
. the redemption date;
. the number of shares and the series of the preferred stock to be
redeemed;
. the redemption price;
. the place or places where holders can surrender the certificates for the
preferred stock for payment of the redemption price;
. that dividends on the shares to be redeemed will cease to accrue on the
redemption date; and
. the date when the holders' conversion rights, if any, will terminate.
If we redeem fewer than all shares of any series of the preferred stock held by
any holder, we will also specify the number of shares to be redeemed from the
holder in the notice.
If we have given notice of the redemption and have provided the funds for
the payment of the redemption price, then beginning on the redemption date:
. the dividends on the preferred stock called for redemption will no
longer accrue;
. those shares will no longer be considered outstanding; and
. the holders will no longer have any rights as shareholders except to
receive the redemption price.
When the holder properly surrenders the redeemed shares, the redemption
price will be paid out of the funds provided by us. If we redeem fewer than all
of the shares represented by any certificate, we will issue a new certificate
representing the unredeemed shares without cost to the holder.
If a redemption described above is deemed to be a "tender offer" within the
meaning of Rule 14e-1 under the Securities Exchange Act, we will comply with
all applicable provisions of the Securities Exchange Act.
Conversion
The applicable prospectus supplement relating to a series of convertible
preferred stock will describe the terms on which shares of that series are
convertible into shares of common stock or a different series of preferred
stock.
Rights Upon Liquidation
Unless the applicable prospectus states otherwise, if we voluntarily or
involuntarily liquidate, dissolve or wind up our business, the holders of
shares of each series of preferred stock offered under this prospectus will be
entitled to receive:
. liquidation distributions in the amount stated in the applicable
prospectus supplement; and
. all accrued and unpaid dividends (whether or not earned or declared).
We will pay these amounts to the holders of shares of those series of
preferred stock, and all amounts owing on any preferred stock ranking equally
with those series of preferred stock as to distributions upon liquidation, out
of our assets available for distribution to shareholders before any
distribution is made to holders of any securities ranking junior to those
series of preferred stock upon liquidation.
18
The sale of all or substantially all of our property and assets, our merger
into or consolidation with any other corporation, or the merger of any other
corporation into us will not be considered a dissolution, liquidation or
winding up of our business.
We will make pro rata distributions to the holders of a series of preferred
stock offered under this prospectus and any other shares of our stock ranking
equal as to that series of preferred stock as to distributions upon
dissolution, liquidation or winding up of our business if:
. we voluntarily or involuntarily liquidate, dissolve or wind up our
business, and
. we do not have enough assets available for distribution to the holders
of that series of preferred stock and any other shares of our stock
ranking equal with that series as to any such distribution to pay all
amounts to which the holders are entitled.
This means the distributions we pay to the holders of all shares ranking equal
as to distributions upon dissolution, liquidation or winding up of our business
will bear the same relationship to each other that the full distributable
amounts for which those holders are respectively entitled upon dissolution,
liquidation, or winding up of our business bear to each other.
After we pay the full amount of the liquidation distribution to which the
holders of a series of the preferred stock are entitled, those holders will
have no right or claim to any of our remaining assets.
Voting Rights
Except as described in this section or in the applicable prospectus
supplement, or except as expressly required by applicable law, the holders of
the preferred stock offered under this prospectus will not be entitled to vote.
If the holders of a series of preferred stock are entitled to vote and the
applicable prospectus supplement does not state otherwise, then each share of
preferred stock will have one vote.
As more fully described under "Description of Depositary Shares" below, if
we issue depositary shares representing fractional interests in a share of
preferred stock, the holders of each depositary share will be entitled to a
fraction of a vote.
For any series of preferred stock having one vote per share, the voting
power of the series, on matters on which holders of that series and holders of
any other series of preferred stock are entitled to vote as a single class,
will solely depend on the total number of shares in that series and not the
aggregate liquidation preference or initial offering price.
Unless we receive the consent of the holders of an outstanding series of
preferred stock offered under this prospectus and the outstanding shares of all
other series of preferred stock that:
. rank equal with that series either as to dividends or the distribution
of assets upon liquidation, dissolution, or winding up of our business,
and
. have voting rights that are exercisable and that are similar to those of
that series,
we will not:
. authorize, create or issue, or increase the authorized or issued amount
of, any class or series of stock ranking senior to that series with
respect to payment of dividends or the distribution of assets upon
liquidation, dissolution or winding up of our business; or
. amend, alter or repeal, whether by merger, consolidation, or otherwise,
the provisions of our restated articles of incorporation or of the
resolutions contained in a certificate of designation creating that
series in a way that materially and adversely affects any right,
preference, privilege or voting power of that series.
19
This consent must be given by the holders of at least two thirds of all
outstanding preferred stock described in the preceding sentence, voting
together as a single class. However, we will not be required to obtain this
consent with respect to any amendment, alteration or repeal affecting the
rights, preferences, privileges or voting powers of preferred stock of the type
described above, if we only:
. increase the amount of the authorized preferred stock;
. create and issue another series of preferred stock; or
. increase the amount of authorized shares of any series of preferred
stock.
so long as that preferred stock in each case ranks equal with or junior to the
shares of preferred stock offered under this prospectus with respect to the
payment of dividends and the distribution of assets upon liquidation,
dissolution or winding up of our business.
Outstanding Preferred Stock
As of June 1, 2002, no shares of preferred stock were issued and outstanding.
DESCRIPTION OF DEPOSITARY SHARES
This section describes the general terms and provisions of the depositary
shares. The prospectus supplement will describe the specific terms of the
depositary shares offered through that prospectus supplement and any general
terms outlined in this section that will not apply to those depositary shares.
We have summarized the material terms and provisions of the deposit
agreement, the depositary shares and the depositary receipts in this section.
We have also filed the form of deposit agreement, including the form of
depositary receipt, as an exhibit to the registration statement. You should
read the forms of deposit agreement and depositary receipt relating to a series
of preferred stock for additional information before you buy any depositary
shares that represent preferred stock of that series.
General
We may offer fractional interests in preferred stock, rather than full
shares of preferred stock. If we do, we will provide for the issuance by a
depositary to the public of receipts for depositary shares, each of which will
represent a fractional interest in a share of a particular series of preferred
stock.
The shares of any series of preferred stock underlying the depositary shares
will be deposited under a separate deposit agreement between us and a bank or
trust company having its principal office in the United States and having a
combined capital and surplus of at least $50 million, which we refer to in this
prospectus as the "depositary." We will name the depositary in the applicable
prospectus supplement. Subject to the terms of the deposit agreement, each
owner of a depositary share will have a fractional interest in all the rights
and preferences of the preferred stock underlying the depositary share. Those
rights include any dividend, voting, redemption, conversion and liquidation
rights.
The depositary shares will be evidenced by depositary receipts issued under
the deposit agreement. If you purchase fractional interests in shares of the
related series of preferred stock, you will receive depositary receipts as
described in the applicable prospectus supplement. While the final depositary
receipts are being prepared, we may order the depositary to issue temporary
depositary receipts substantially identical to the final depositary receipts
although not in final form. The holders of the temporary depositary receipts
will be entitled to the same rights as if they held the depositary receipts in
final form. Holders of the temporary depositary receipts can exchange them for
the final depositary receipts at our expense.
20
If you surrender depositary receipts at the principal office of the
depositary, unless the related depositary shares have previously been called
for redemption, you are entitled to receive the number of shares of preferred
stock and any money or other property represented by the depositary shares. We
will not issue partial shares of preferred stock. If you deliver depositary
receipts evidencing a number of depositary shares that represent more than a
whole number of shares of preferred stock, the depositary will issue you a new
depositary receipt evidencing the excess number of depositary shares at the
same time that the shares of preferred stock are withdrawn. Holders of
preferred stock received in exchange for depositary shares will no longer be
entitled to deposit those shares under the deposit agreement or to receive
depositary shares in exchange for those shares of preferred stock.
Dividends and Other Distributions
The depositary will distribute all cash dividends or other cash
distributions received with respect to the preferred stock to the record
holders of depositary shares representing the shares of preferred stock in
proportion to the numbers of depositary shares owned by the holders on the
relevant record date. The depositary will not distribute amounts less than one
cent. The depositary will distribute any balance with the next sum received for
distribution to record holders of depositary shares.
If there is a distribution other than in cash, the depositary will
distribute property to the holders of depositary shares, unless the depositary
determines that it is not feasible to make the distribution. If this occurs,
the depositary may, with our approval, sell the property and distribute the net
proceeds from the sale to the holders of depositary shares.
The deposit agreement will also contain provisions relating to how any
subscription or similar rights offered by us to holders of the preferred stock
will be made available to the holders of depositary shares.
Conversion and Exchange
If any series of preferred stock underlying the depositary shares is subject
to conversion or exchange, the applicable prospectus supplement will describe
the rights or obligations of each record holder of depositary receipts to
convert or exchange the depositary shares.
Redemption of Depositary Shares
If the series of the preferred stock underlying the depositary shares is
subject to redemption, all or a part of the depositary shares will be redeemed
from the redemption proceeds of that series of the preferred stock held by the
depositary. The depositary will mail notice of redemption between 30 to 60 days
prior to the date fixed for redemption to the record holders of the depositary
shares to be redeemed at their addresses appearing in the depositary's records.
The redemption price per depositary share will bear the same relationship to
the redemption price per share of preferred stock that the depositary share
bears to the underlying preferred stock. Whenever we redeem preferred stock
held by the depositary, the depositary will redeem, as of the same redemption
date, the number of depositary shares representing the preferred stock
redeemed. If less than all the depositary shares are to be redeemed, the
depositary shares to be redeemed will be selected by lot or pro rata as
determined by the depositary.
After the date fixed for redemption, the depositary shares called for
redemption will no longer be outstanding. When the depositary shares are no
longer outstanding, all rights of the holders will cease, except the right to
receive money or other property that the holders of the depositary shares were
entitled to receive upon the redemption. Payments will be made when holders
surrender their depositary receipts to the depositary.
Voting the Preferred Stock
When the depositary receives notice of any meeting at which the holders of
the preferred stock may vote, the depositary will mail information about the
meeting contained in the notice to the record holders of the
21
depositary shares relating to the preferred stock. Each record holder of
depositary shares on the record date, which will be the same date as the record
date for the preferred stock, will be entitled to instruct the depositary as to
how the preferred stock underlying the holder's depositary shares should be
voted.
The depositary will try, if practical, to vote the number of shares of
preferred stock underlying the depositary shares according to the instructions
received. We will agree to take all action requested by and deemed necessary by
the depositary in order to enable the depositary to vote the preferred stock in
that manner. The depositary will not vote any preferred stock for which it does
not receive specific instructions from the holders of the depositary shares
relating to such preferred stock.
Taxation
Owners of depositary shares will be treated for federal income tax purposes
as if they were owners of the preferred stock represented by the depositary
shares. Accordingly, for federal income tax purposes they will have the income
and deductions to which they would be entitled if they were holders of the
preferred stock. In addition:
. no gain or loss will be recognized for federal income tax purposes upon
the withdrawal of preferred stock in exchange for depositary shares as
provided in the deposit agreement;
. the tax basis of each share of preferred stock to an exchanging owner of
depositary shares will, upon the exchange, be the same as the aggregate
tax basis of the depositary shares exchanged for such preferred stock;
and
. the holding period for the preferred stock, in the hands of an
exchanging owner of depositary shares who held the depositary shares as
a capital asset at the time of the exchange, will include the period
that the owner held the depositary shares.
Amendment and Termination of the Deposit Agreement
The form of depositary receipt evidencing the depositary shares and any
provision of the deposit agreement may be amended by agreement between us and
the depositary at any time. However, any amendment that materially and
adversely alters the rights of the existing holders of depositary shares will
not be effective unless approved by the record holders of at least a majority
of the depositary shares then outstanding. A deposit agreement may be
terminated by us or the depositary only if:
. all outstanding depositary shares relating to the deposit agreement have
been redeemed; or
. there has been a final distribution on the preferred stock of the
relevant series in connection with our liquidation, dissolution or
winding up of our business and the distribution has been distributed to
the holders of the related depositary shares.
Charges of Depositary
We will pay all transfer and other taxes and governmental charges arising
solely from the existence of the depositary arrangements. We will pay
associated charges of the depositary for the initial deposit of the preferred
stock and any redemption of the preferred stock. Holders of depositary shares
will pay transfer and other taxes and governmental charges and any other
charges that are stated to be their responsibility in the deposit agreement.
Miscellaneous
We will forward to the holders of depositary shares all reports and
communications that we must furnish to the holders of the preferred stock.
22
Neither the depositary nor we will be liable if the depositary is prevented
or delayed by law or any circumstance beyond its control in performing its
obligations under the deposit agreement. Our obligations and the depositary's
obligations under the deposit agreement will be limited to performance in good
faith of duties set forth in the deposit agreement. Neither the depositary nor
we will be obligated to prosecute or defend any legal proceeding connected with
any depositary shares or preferred stock unless satisfactory indemnity is
furnished to us and/or the depositary. We and the depositary may rely upon
written advice of counsel or accountants, or information provided by persons
presenting preferred stock for deposit, holders of depositary shares or other
persons believed to be competent and on documents believed to be genuine.
Resignation and Removal of Depositary
The depositary may resign at any time by delivering notice to us. We may
also remove the depositary at any time. Resignations or removals will take
effect when a successor depositary is appointed and it accepts the appointment.
The successor depositary must be appointed within 60 days after delivery of the
notice of resignation or removal and must be a bank or trust company having its
principal office in the United States and having a combined capital and surplus
of at least $50 million.
DESCRIPTION OF COMMON STOCK
This section describes the general terms of our common stock. The prospectus
supplement will describe the specific terms of the common stock offered through
that prospectus supplement and any general terms outlined in this section that
will not apply to that offering of common stock.
We have summarized the material terms and provisions of the common stock in
this section. We have also filed our restated articles of incorporation and our
bylaws as exhibits to the registration statement. You should read our restated
articles of incorporation and our bylaws for additional information before you
buy any common stock or any securities which may be exercised or exchangeable
for or converted into common stock.
General
Shares Outstanding. As of June 1, 2002, our authorized common stock was
80,000,000 shares, of which 28,280,896 shares were issued and outstanding.
Dividends. Holders of common stock may receive dividends when declared by
our board of directors out of our funds that we can legally use to pay
dividends. We may pay dividends in cash, stock or other property. Holders of
common stock may not receive dividends until we have satisfied our obligations
to the holders of outstanding preferred stock.
Voting Rights. Holders of common stock have the exclusive power to vote on
all matters presented to our shareholders unless Minnesota law or the
certificate of designation for an outstanding series of preferred stock gives
the holders of that preferred stock the right to vote on certain matters. Each
holder of common stock is entitled to one vote per share. Holders of common
stock may not cumulate their votes when voting for directors, which means that
a holder cannot cast more than one vote per share for each director.
Other Rights. If we voluntarily or involuntarily liquidate, dissolve or
wind up our business, holders of common stock will receive pro rata, according
to shares held by them, any remaining assets able to be distributed to our
shareholders after we have provided for the liquidation preference of any
outstanding shares of preferred stock. When we issue securities in the future,
holders of common stock have no preemptive rights to buy any portion of those
issued securities. Each share of common stock includes a right to purchase
additional shares of common stock if the conditions discussed below under the
heading "--Rights Agreement" occur.
23
Listing. Our outstanding shares of common stock are traded on the Nasdaq
National Market System under the symbol "FULL." Wells Fargo Bank Minnesota,
N.A. serves as the transfer agent and registrar for our common stock.
Fully Paid. Our outstanding shares of common stock are fully paid and
nonassessable. Any additional common stock that we may issue in the future
pursuant to an offering under this prospectus or upon the conversion, exchange
or exercise of other securities offered under this prospectus will also be
fully paid and nonassessable.
Anti-Takeover Provisions Contained in our Articles of Incorporation and Bylaws
Certain provisions of our restated articles of incorporation may make it
less likely that our management would be changed or someone would acquire
voting control of our company without the consent of our board of directors.
These provisions may delay, deter or prevent tender offers or takeover attempts
that shareholders may believe are in their best interests, including tender
offers or attempts that might allow shareholders to receive premiums over the
market price of their common stock.
Fair Price Provision. Our restated articles of incorporation prohibit
certain business combinations between our company and direct and indirect
owners of 20% or more of our voting stock, which we will refer to as
"interested shareholders," unless those transactions are approved by holders of
at least 95% of our outstanding voting stock, voting together as a single
class. This 95% approval is in addition to any approval required by law.
Business combinations requiring the 95% approval include the following
transactions, among others:
. any merger or consolidation with an interested shareholder or a
corporation affiliated with an interested shareholder;
. any sale, lease, exchange, pledge, transfer, or other disposition of our
assets valued at least $5 million to an interested shareholder or person
or entity affiliated with an interested shareholder;
. the issuance or transfer by us of any of our shares to an interested
shareholder or person or entity affiliated with an interested
shareholder in exchange for cash or property having a value of at least
$5 million;
. the adoption of any plan proposed by or on behalf of an interested
shareholder or a person or entity affiliated with an interested
shareholder to liquidate or dissolve our company; and
. any transaction that increases the proportionate share of our stock
owned directly or indirectly by an interested shareholder or a person or
entity affiliated with an interested shareholder.
Shareholders do not need to approve a business combination under our
restated articles of incorporation if a majority of the continuing directors
approve the business combination. "Continuing directors" are those directors
who:
. were members of the board of directors before the interested shareholder
involved in the business combination acquired in excess of 7.5% of the
outstanding voting power of our capital stock, or
. were designated as continuing directors before their initial election as
directors by a majority of directors at that time.
Shareholders also do not need to approve a business combination under our
restated articles of incorporation if the transaction meets specified
conditions. These conditions include, among other things, the following:
. holders of our capital stock will receive at least the minimum amount of
consideration in the business combination determined under our restated
articles of incorporation;
24
. the consideration to be received by our shareholders in the business
combination will be in the same form and of the same kind as the
consideration paid by the interested shareholder in acquiring the shares
already owned by it;
. the interested shareholder does not acquire any additional shares of our
stock after becoming an interested shareholder, unless the additional
acquisition is approved by a majority of the continuing directors; and
. a proxy statement describing the proposed business combination is mailed
to all holders of our stock before the business combination is completed.
Holders of at least 95% of our outstanding voting stock, voting together as one
class, must approve a proposal to amend or repeal, or adopt provisions
inconsistent with, these provisions of our restated articles of incorporation.
Control Share Acquisition Provision. Our restated articles of incorporation
provide that if a shareholder becomes, through the acquisition of shares, the
beneficial owner of 20% or more of the outstanding voting power of our company
(or increases its ownership to 33 1/3% or more or to a majority of the
outstanding voting shares), then the shareholder, subject to certain
exceptions, may not vote the shares in excess of the 20% (or 33 1/3% or 50%)
threshold without the prior approval of the holders of both
. a majority of the outstanding voting power of our capital stock, and
. a majority of the outstanding voting of our capital stock not owned by
the acquiring shareholder, the officers of our company, and our
directors who are also our employees.
A shareholder meeting to vote on this matter must be held within 55 days
after being requested by the acquiring shareholder. The request may be made
before the shareholder acquires the shares that would cross the applicable
threshold. Our restated articles provide, however, that the shareholder meeting
will not be held unless the acquiring shareholder, among other things, provides
evidence to us that the shareholder has entered into definitive financing
agreements with responsible financial institutions for all necessary financing
of the share acquisition that is not to be provided from the personal funds of
the shareholder.
Preferred Stock. Our board of directors may at any time, under our restated
articles of incorporation and without shareholder approval, issue one or more
new series of preferred stock. In some cases, the issuance of preferred stock
without shareholder approval could discourage or make more difficult attempts
to take control of our company through a merger, tender offer, proxy contest or
otherwise. Preferred stock with special voting rights or other features issued
to persons favoring our management could stop a takeover by preventing the
person trying to take control of our company from acquiring enough voting
shares necessary to take control.
Classified Board. Members of our board of directors are divided into three
classes and serve staggered three-year terms under our restated articles of
incorporation. This means that only approximately one-third of our directors
are elected at each annual meeting of shareholders and that it would take two
years to replace a majority of the directors unless they are removed. Under our
restated articles of incorporation, directors can be removed from office during
their terms only if holders of at least two-thirds of our outstanding voting
stock, voting together as one class, approve the removal. At least two-thirds
of our outstanding voting stock, voting together as one class, must approve any
proposal to amend or repeal, or adopt any provisions inconsistent with, these
provisions of our restated articles of incorporation.
Nomination Procedures. In addition to our board of directors, shareholders
can nominate candidates for our board of directors. However, a shareholder must
follow the advance-notice procedures described in our bylaws. In general, a
shareholder must submit a written notice of the nomination to the Corporate
Governance Committee of our board of directors at least 120 days before the
first anniversary of the mailing of our proxy statement for the prior year's
annual shareholders' meeting. The notice must also contain certain information
about the director-nominee, together with the written consent of the nominee to
serve as director.
25
Shareholder-Proposal Procedures. Shareholders can propose that business
other than nominations to our board of directors be considered at an annual
meeting of shareholders only if a shareholder follows the advance-notice
procedures described in our bylaws. In general, the deadline for submitting a
shareholder proposal is the same as for submitting shareholder-sponsored
nominations to our board of directors.
Rights Agreement
Each share of our common stock, including those that may be issued in an
offering under this prospectus or upon the conversion, exchange or exercise of
other securities offered under this prospectus, carries with it one share
purchase right. Each right entitles the registered holder to purchase from us
one share of common stock at an exercise price of $90, subject to adjustment.
Until the distribution date for the rights, they will be evidenced by
certificates representing shares of common stock and will be transferred only
with the shares of common stock. The rights will separate from the shares of
common stock and a distribution date for the rights will occur upon the earlier
of the following (making the person at issue an "acquiring person"):
. the first date of a public announcement that a person or group of
affiliated or associated persons has acquired, or obtained the right to
acquire, beneficial ownership of 15% or more of the outstanding voting
power of our capital stock; or
. the commencement or public announcement of a tender or exchange offer
the consummation of which would result in a person or group of
affiliated or associated persons becoming the beneficial owner of 15% or
more of the outstanding voting power of our capital stock.
The rights are not exercisable until the distribution date. They will expire
on July 30, 2006, unless extended or redeemed by us.
Upon the occurrence of any of the foregoing events, each holder of a right
(other than rights beneficially owned by an acquiring person) will have the
right to receive, upon exercise of the right at its then-current exercise
price, a number of shares of our common stock having a market value of two
times the exercise price of the right, subject to certain possible adjustments.
If our company is acquired in a merger or other business-combination
transaction or 50% or more of the assets or earning power of our company and
its subsidiaries (taken as a whole) are sold after a public announcement that a
person has become an acquiring person, then each holder of a right will have
the right to receive, upon exercise of the right at its then-current exercise
price, a number of common shares of the acquiring person (or in certain cases,
one of its affiliates) having a market value of two times the exercise price of
the right.
The rights are redeemable at a price of one cent per right at any time
before a person has become an acquiring person.
DESCRIPTION OF SECURITIES WARRANTS
This section describes the general terms and provisions of the securities
warrants. The prospectus supplement will describe the specific terms of the
securities warrants offered through that prospectus supplement and any general
terms outlined in this section that will not apply to those securities warrants.
We may issue warrants for the purchase of debt securities, preferred stock,
depositary shares or common stock, which we will collectively refer to as the
"securities warrants." Securities warrants may be issued alone or together with
debt securities, preferred stock, depositary shares or common stock offered by
any prospectus
26
supplement and may be attached to or separate from those securities. Each
series of securities warrants will be issued under a separate warrant agreement
between us and a bank or trust company, as warrant agent, which will be
described in the applicable prospectus supplement. The securities warrant agent
will act solely as our agent in connection with the securities warrants and
will not act as an agent or trustee for any holders of securities warrants.
We have summarized the material terms and provisions of the securities
warrant agreements and securities warrants in this section. We have also filed
the forms of securities warrant agreements and the certificates representing
the securities warrants as exhibits to the registration statement. You should
read the applicable forms of securities warrant agreement and securities
warrant certificate for additional information before you buy any securities
warrants.
General
If we offer securities warrants, the applicable prospectus supplement will
describe their terms. If securities warrants for the purchase of debt
securities are offered, the applicable prospectus supplement will describe the
terms of those securities warrants, including the following if applicable:
. the offering price;
. the currencies in which the securities warrants are being offered;
. the designation, aggregate principal amount, currencies, denominations
and terms of the series of the debt securities that can be purchased if
a holder exercises the securities warrants;
. the designation and terms of any series of debt securities, preferred
stock or depositary shares with which the securities warrants are being
offered and the number of securities warrants offered with each debt
security, share of preferred stock, depositary share or share of common
stock;
. the date on and after which the holder of the securities warrants can
transfer them separately from the related common stock or series of debt
securities, preferred stock or depositary shares;
. the principal amount of the series of debt securities that can be
purchased if a holder exercises the securities warrant and the price at
which and currencies in which the principal amount may be purchased upon
exercise;
. the date on which the right to exercise the securities warrants begins
and the date on which the right expires;
. United States federal income tax consequences; and
. any other terms of the securities warrants.
Unless we state otherwise in the applicable prospectus supplement, the
securities warrants for the purchase of debt securities will be in registered
form only.
If securities warrants for the purchase of preferred stock, depositary
shares or common stock are offered, the applicable prospectus supplement will
describe the terms of those securities warrants, including the following where
applicable:
. the offering price;
. the total number of shares that can be purchased if a holder of the
securities warrants exercises them and, in the case of securities
warrants for preferred stock or depositary shares, the designation,
total number and terms of the series of preferred stock that can be
purchased upon exercise or that are underlying the depositary shares
that can be purchased upon exercise;
27
. the designation and terms of the series of debt securities, preferred
stock or depositary shares with which the securities warrants are being
offered and the number of securities warrants being offered with each
debt security, share of preferred stock, depositary share or share of
common stock;
. the date on and after which the holder of the securities warrants can
transfer them separately from the related common stock or series of debt
securities, preferred stock or depositary shares;
. the number of shares of preferred stock, depositary shares or shares of
common stock that can be purchased if a holder exercises the securities
warrant and the price at which the preferred stock, depositary shares or
common stock may be purchased upon each exercise;
. the date on which the right to exercise the securities warrants begins
and the date on which the right expires;
. United States federal income tax consequences; and
. any other terms of the securities warrants.
Securities warrants for the purchase of preferred stock, depositary shares
or common stock will be in registered form only.
A holder of securities warrant certificates may:
. exchange them for new certificates of different denominations;
. present them for registration of transfer; and
. exercise them at the corporate trust office of the securities warrant
agent or any other office indicated in the applicable prospectus
supplement.
Until any securities warrants to purchase debt securities are exercised, the
holder of these securities warrants will not have any of the rights of holders
of the debt securities that can be purchased upon exercise, including any right
to receive payments of principal, premium or interest on the underlying debt
securities or to enforce covenants in the indenture. Until any securities
warrants to purchase preferred stock, depositary shares or common stock are
exercised, holders of these securities warrants will not have any rights of
holders of the underlying preferred stock, depositary shares or common stock,
including any right to receive dividends or to exercise any voting rights.
Exercise of Securities Warrants
Each holder of a securities warrant is entitled to purchase the principal
amount of debt securities or number of shares of preferred stock, depositary
shares or shares of common stock, as the case may be, at the exercise price
described in the applicable prospectus supplement. After the close of business
on the day when the right to exercise terminates (or a later date if we extend
the time for exercise), unexercised securities warrants will become void.
A holder of securities warrants may exercise them by following the general
procedure outlined below:
. delivering to the securities warrant agent the payment required by the
applicable prospectus supplement to purchase the underlying security;
. properly completing and signing the reverse side of the securities
warrant certificate representing the securities warrants; and
. delivering the securities warrant certificate representing the
securities warrants to the securities warrant agent within five business
days of the securities warrant agent receiving payment of the exercise
price.
28
If you comply with the procedures described above, your securities warrants
will be considered to have been exercised when the securities warrant agent
receives payment of the exercise price. After you have completed those
procedures, we will, as soon as practicable, issue and deliver to you the debt
securities, preferred stock, depositary shares or common stock that you
purchased upon exercise. If you exercise fewer than all of the securities
warrants represented by a securities warrant certificate, the securities
warrant agent will issue to you a new securities warrant certificate for the
unexercised amount of securities warrants. Holders of securities warrants will
be required to pay any tax or governmental charge that may be imposed in
connection with transferring the underlying securities in connection with the
exercise of the securities warrants.
Amendments and Supplements to Securities Warrant Agreements
We may amend or supplement a securities warrant agreement without the
consent of the holders of the applicable securities warrants if the changes are
not inconsistent with the provisions of the securities warrants and do not
materially adversely affect the interests of the holders of the securities
warrants. We, along with the securities warrant agent, may also modify or amend
a securities warrant agreement and the terms of the securities warrants if a
majority of the then-outstanding unexercised securities warrants affected by
the modification or amendment consent. However, no modification or amendment
that accelerates the expiration date, increases the exercise price, reduces the
majority consent requirement for any such modification or amendment, or
otherwise materially adversely affects the rights of the holders of the
securities warrants may be made without the consent of each holder affected by
the modification or amendment.
Common Stock Warrant Adjustments
Unless the applicable prospectus supplement states otherwise, the exercise
price of, and the number of shares of common stock covered by, a common stock
warrant will be adjusted in the manner set forth in the applicable prospectus
supplement if certain events occur, including:
. if we issue capital stock as a dividend or distribution on the common
stock;
. if we subdivide, reclassify or combine the common stock;
. if we issue rights or warrants to all holders of common stock entitling
them to purchase common stock at less than the current market price; or
. if we distribute to all holders of common stock evidences of our
indebtedness or our assets, excluding certain cash dividends and
distributions described below, or if we distribute to all holders of
common stock rights or warrants, excluding those referred to in the
bullet point above.
Except as stated above, the exercise price and number of shares of common
stock covered by a common stock warrant will not be adjusted if we issue common
stock or any securities convertible into or exchangeable for common stock, or
securities carrying the right to purchase common stock or securities
convertible into or exchangeable for common stock.
Holders of common stock warrants may have additional rights under the following
circumstances:
. a reclassification or change of the common stock;
. a consolidation or merger involving our company; or
. a sale or conveyance to another corporation of all or substantially all
of our property and assets.
If one of the above transactions occurs and holders of our common stock are
entitled to receive stock, securities, other property or assets, including
cash, with respect to or in exchange for common stock, the holders of the
common stock warrants then outstanding will be entitled to receive upon
exercise of their common stock
29
warrants the kind and amount of shares of stock and other securities or
property that they would have received upon the reclassification, change,
consolidation, merger, sale or conveyance if they had exercised their common
stock warrants immediately before the transaction.
PLAN OF DISTRIBUTION
We may sell the securities offered under this prospectus through agents,
through underwriters or dealers or directly to one or more purchasers.
Underwriters, dealers and agents that participate in the distribution of the
securities offered under this prospectus may be underwriters as defined in the
Securities Act of 1933 and any discounts or commissions received by them from
us and any profit on the resale of the offered securities by them may be
treated as underwriting discounts and commissions under the Securities Act. Any
underwriters or agents will be identified and their compensation, including any
underwriting discount, will be described in the applicable prospectus
supplement. The prospectus supplement will also describe other terms of the
offering, including the initial public offering price, any discounts or
concessions allowed or reallowed or paid to dealers and any securities
exchanges on which the offered securities may be listed.
The distribution of the securities offered under this prospectus may occur
from time to time in one or more transactions at a fixed price or prices, which
may be changed, at market prices prevailing at the time of sale, at prices
related to the prevailing market prices or at negotiated prices.
We may determine the price or other terms of the securities offered under
this prospectus by use of an electronic auction. We will describe in the
applicable prospectus supplement how any auction will be conducted to determine
the price or any other terms of the securities, how potential investors may
participate in the auction and, where applicable, the nature of the
underwriters' obligations with respect to the auction.
If the applicable prospectus supplement indicates, we will authorize
underwriters, dealers or our agents to solicit offers by institutions to
purchase offered securities from us under contracts that provide for payment
and delivery on a future date. The prospectus supplement will specify the
conditions of these contracts and the commission payable for solicitation of
the contracts.
We may have agreements with the underwriters, dealers and agents to
indemnify them against certain civil liabilities, including liabilities under
the Securities Act, or to contribute with respect to payments which the
underwriters, dealers or agents may be required to make as a result of those
certain civil liabilities.
If we offer bearer debt securities under this prospectus, each underwriter,
dealer and agent that participates in the distribution of any original issuance
of bearer debt securities will agree not to offer, sell or deliver bearer debt
securities to a United States citizen or to any person within the United
States, unless federal law permits otherwise.
When we issue the securities offered under this prospectus, except for
shares of common stock, they may be new securities without an established
trading market. If we sell a security offered under this prospectus to an
underwriter for public offering and sale, the underwriter may make a market for
that security, but the underwriter will not be obligated to do so and could
discontinue any market making without notice at any time. Therefore, we cannot
give any assurances to you concerning the liquidity of any security offered
under this prospectus.
Underwriters and agents and their affiliates may be customers of, engage in
transactions with, or perform services for us or our subsidiaries in the
ordinary course of their businesses. In connection with the distribution of
debt securities, we may enter into swap or other hedging transactions with, or
arranged by, underwriters or agents
30
for the debt securities or affiliates of such persons. These underwriters and
agents and their affiliates may receive compensation, trading gain or other
benefit from these transactions.
LEGAL OPINIONS
Steven E. Suckow, Esq., who is our Associate General Counsel, or another of
our lawyers, will issue an opinion about the legality of the securities offered
under this prospectus. Mr. Suckow owns, or has the right to acquire, a number
of shares of our common stock which represents less than 1% of the total
outstanding common stock. Any underwriters will be represented by their own
legal counsel.
EXPERTS
The consolidated financial statements of H.B. Fuller Company as of December
1, 2001 and December 2, 2000 and for each of the three years in the period
ended December 1, 2001 incorporated in this prospectus by reference to the
Current Report on Form 8-K of H.B. Fuller Company filed with the Securities and
Exchange Commission on September 24, 2002 have been so incorporated in reliance
on the reports of PricewaterhouseCoopers LLP, independent accountants, given on
the authority of said firm as experts in auditing and accounting.
31
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following is an estimate, subject to future contingencies, of the
expenses to be incurred by the registrant in connection with the issuance and
distribution of the securities being registered:
Registration Fee................................ $ 46,000
Legal Fees and Expenses*........................ 100,000
Trustee Fees and Expenses*...................... 20,000
Transfer Agent Fees and Expenses*............... 5,000
Accounting Fees and Expenses*................... 100,000
Blue Sky and Legal Investment Fees and Expenses* 5,000
Printing and Engraving Fees*.................... 50,000
Rating Agency Fees*............................. 325,000
Listing Fees*................................... 21,000
Miscellaneous*.................................. 3,000
--------
Total........................................... $675,000
========
--------
/* /Estimated pursuant to instruction to Item 511 of Regulation S-K.
Item 15. Indemnification of Directors and Officers
The registrant is subject to Minnesota Statutes Chapter 302A, the Minnesota
Business Corporation Act (the "Corporation Act"). Section 302A.521 of the
Corporation Act provides in substance that, unless prohibited by its articles
of incorporation or bylaws, a corporation must indemnify an officer or director
who is made or threatened to be made a party to a proceeding by reason of the
former or present official capacity of the person against judgments, penalties,
fines, including, without limitation, excise taxes assessed against the person
with respect to an employee benefit plan, settlements, and reasonable expenses,
including attorneys' fees and disbursements, incurred by such person in
connection with the proceeding, if certain criteria are met. These criteria,
all of which must be met by the person seeking indemnification, are (a) that
such person has not been indemnified by another organization or employee
benefit plan for the same judgments, penalties, fines, including, without
limitation, excise taxes assessed against the person with respect to an
employee benefit plan, settlements, and reasonable expenses, including
attorneys' fees and disbursements, incurred by the person in connection with
the proceeding with respect to the same act or omissions; (b) that such person
must have acted in good faith; (c) that no improper personal benefit was
obtained by such person and such person satisfied certain statutory conflicts
of interest provisions, if applicable; (d) that in the case of a criminal
proceeding, such person had no reasonable cause to believe that the conduct was
unlawful; and (e) that such person must have acted in a manner such person
reasonably believed was in the best interests of the corporation or, in certain
limited circumstances, not opposed to the best interests of the corporation. In
addition, Section 302A.521, subd. 3 requires payment by the registrant, upon
written request, of reasonable expenses in advance of final disposition in
certain instances. A decision as to required indemnification is made by a
majority of the disinterested board of directors present at a meeting at which
a disinterested quorum is present, or by a designated committee of
disinterested directors, by special legal counsel, by the disinterested
shareholders, or by a court.
Pursuant to the terms of forms of underwriting agreements and form of
distribution agreement filed as Exhibits 1(a), 1(b), 1(c) and 1(d) to this
registration statement, the underwriters will agree to indemnify the directors
and officers of the registrant against certain civil liabilities that they may
incur under the Securities Act of 1933 in connection with this registration
statement and the related prospectus and applicable prospectus supplement. The
registrant also maintains a director and officer insurance policy to cover the
registrant, its directors and its officers against certain liabilities.
Item 16. Exhibits
The following exhibits are filed as part of this registration statement:
1(a) Form of Underwriting Agreement for Debt Securities.
1(b) Form of Underwriting Agreement for Preferred Stock.
1(c) Form of Underwriting Agreement for Common Stock.
1(d) Form of Distribution Agreement.
4(a) Restated Articles of Incorporation (dated October 30, 1998).(1)
4(b) Articles of Amendment of Articles of Incorporation (dated October 27, 2001).(2)
4(c) By-Laws (as amended through July 14, 1999).(3)
4(d) Rights Agreement, dated as of July 18, 1996, between the Registrant and Norwest Bank Minnesota,
National Association. (4)
4(e) First Amendment to Rights Agreement dated January 23, 2001. (5)
4(f) Form of Indenture.
4(g) Forms of Medium-Term Notes.
4(h) Form of Note.
4(i) Form of Certificate of Designation, Preferences and Rights of Preferred Stock.
4(j) Form of Preferred Stock Certificate.
4(k) Form of Convertible Preferred Stock Certificate.
4(l) Form of Deposit Agreement, including form of Depositary Receipt.
4(m) Form of Debt Warrant Agreement, including form of Debt Warrant Certificate.
4(n) Form of Preferred Stock Warrant Agreement, including form of Preferred Stock Warrant Certificate.
4(o) Form of Common Stock Warrant Agreement, including form of Common Stock Warrant Certificate.
4(p) Form of Common Stock Certificate.
The Registrant and certain of its consolidated subsidiaries have outstanding certain long-term debt. No
individual series of such debt exceeds 10% of the total assets of H.B. Fuller Company and its
consolidated subsidiaries. Copies of instruments with respect to long-term debt will be furnished to the
Commission upon request.
5 Opinion of Associate General Counsel of the Registrant.
12 Computations of ratios of earnings to fixed charges and ratios of earnings to fixed charges and
preferred stock dividends.
23(a) Consent of Associate General Counsel of the Registrant (included as part of Exhibit 5).
23(b) Consent of PricewaterhouseCoopers LLP.
24 Powers of Attorney.
--------
(1) Incorporated by reference to Exhibit 3(a) to the registrant's Annual Report
on Form 10-K for the year ended November 28, 1998.
(2) Incorporated by reference to Exhibit 3.2 to the registrant's Annual Report
on Form 10-K for the year ended December 1, 2001.
II-2
(3) Incorporated by reference to Exhibit 3(b) to the registrant's Quarterly
Report on Form 10-Q for the quarter ended August 28, 1999 (File No. 0-3488).
(4) Incorporated by reference to Exhibit 4 to the registrant's Current Report
on Form 8-K, dated July 24, 1996 (File No. 0-3488).
(5) Incorporated by reference to Exhibit 1 to the registrant's Registration
Statement on Form 8-A/A-1, dated February 5, 2001 (File No. 001-09225).
Item 17. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. 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) and (a)(1)(ii) of this section
do not apply if the registration statement is on Form S-3, Form S-8 or Form
F-3, and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the registrant pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) 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 the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers, and controlling persons of
the registrant pursuant to the 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
II-3
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.
(d) The undersigned registrant hereby undertakes to file applications 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.
II-4
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 St. Paul and the State of Minnesota, on the 24th day
of September, 2002.
H.B. FULLER COMPANY
By: /s/ ALBERT P.L. STROUCKEN
------------------------------------
Albert P.L. Stroucken
Chairman of the Board, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed on the 24th day of September, 2002 by
the following persons in the capacities indicated:
/s/ ALBERT P.L. STROUCKEN Chairman of the Board, President
----------------------------- and Chief Executive Officer
Albert P.L. Stroucken (Principal Executive Officer)
Senior Vice President and
/s/ RAYMOND A. TUCKER Chief Financial Officer
----------------------------- (Principal Financial Officer)
Raymond A. Tucker
/s/ JAMES C. MCCREARY, JR. Vice President and Controller
----------------------------- (Principal Accounting Officer)
James C. McCreary, Jr.
Norbert R. Berg )
Freeman A. Ford )
Gail D. Fosler )
Reatha Clark King )
Knut Kleedehn ) Directors*
J. Michael Losh )
John J. Mauriel, Jr. )
Lee R. Mitau )
Albert P.L. Stroucken )
R. William Van Sant )
/*/ Steven E. Suckow, by signing his name hereto on the 24th day of September,
2002, does hereby sign this document pursuant to powers of attorney duly
executed by the Directors named, filed with the Securities and Exchange
Commission on behalf of such Directors, all in the capacities and on the
date stated, such persons being all of the Directors of the registrant.
/s/ STEVEN E. SUCKOW
----------------------------------
Steven E. Suckow, Attorney-in-Fact
II-5
EXHIBIT INDEX
Exhibit
Number Document Description Form of Filing
------ ----------------------------------------------------------------------- -------------------------
1(a) Form of Underwriting Agreement for Debt Securities Electronic Transmission
1(b) Form of Underwriting Agreement for Preferred Stock Electronic Transmission
1(c) Form of Underwriting Agreement for Common Stock Electronic Transmission
1(d) Form of Distribution Agreement Electronic Transmission
4(a) Restated Articles of Incorporation (dated October 30, 1998) Incorporated by Reference
4(b) Articles of Amendment of Articles of Incorporation (dated October 27, Incorporated by Reference
2001)
4(c) By-Laws (as amended through July 14, 1999) Incorporated by Reference
4(d) Rights Agreement, dated as of July 18, 1996, between the Registrant Incorporated by Reference
and Norwest Bank National Association, as Rights Agent
4(e) First Amendment to Rights Agreement, dated as of January 23, 2001, Incorporated by Reference
between the Registrant and Wells Fargo Bank Minnesota, N.A., as
Rights Agent
4(f) Form of Indenture Electronic Transmission
4(g) Forms of Medium-Term Notes Electronic Transmission
4(h) Form of Note Electronic Transmission
4(i) Form of Certificate of Designation, Preferences and Rights of Preferred Electronic Transmission
Stock
4(j) Form of Preferred Stock Certificate Electronic Transmission
4(k) Form of Convertible Preferred Stock Certificate Electronic Transmission
4(l) Form of Deposit Agreement, including form of Depositary Receipt Electronic Transmission
4(m) Form of Debt Warrant Agreement, including form of Debt Warrant Electronic Transmission
Certificate.
4(n) Form of Preferred Stock Warrant Agreement, including form of Electronic Transmission
Preferred Stock Warrant Certificate
4(o) Form of Common Stock Warrant Agreement, including form of Electronic Transmission
Common Stock Warrant Certificate
4(p) Form of Common Stock Certificate Electronic Transmission
5 Opinion of Associate General Counsel of the Registrant Electronic Transmission
12 Computations of ratios of earnings to fixed charges and ratios of Electronic Transmission
earnings to fixed charges and preferred stock dividends
23(a) Consent of Associate General Counsel of the Registrant (included as
part of Exhibit 5)
23(b) Consent of PricewaterhouseCoopers LLP Electronic Transmission
24 Powers of Attorney Electronic Transmission