posasr
As filed with the Securities and Exchange Commission on
May 27, 2008
Registration No. 333-137541
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C.
20549
Post-Effective Amendment No.
1
to
Form S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
ARCHER-DANIELS-MIDLAND
COMPANY
(Exact name of the Registrant as
specified in its charter)
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Delaware
(State or Other
Jurisdiction
of Incorporation)
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41-0129150
(I.R.S. Employer
Identification Number)
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4666 Faries Parkway, Box 1470
Decatur, Illinois 62525
(217) 424-5200
(Address and telephone number of
the Registrants principal executive offices)
David J. Smith
Executive Vice President, Secretary and General Counsel
Archer-Daniels-Midland Company
4666 Faries Parkway, Box 1470
Decatur, Illinois 62525
(217) 424-5200
(Name, address and telephone
number of agent for service)
Copies to:
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Steven C. Kennedy
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Edward S. Best
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W. Morgan Burns
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Mayer Brown LLP
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Faegre & Benson LLP
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71 South Wacker Drive
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2200 Wells Fargo Center
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Chicago, Illinois 60603
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90 South Seventh Street
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Minneapolis, Minnesota
55402-3901
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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. o
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. þ
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. o
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. o
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following
box: þ
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed
to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities
Act, check the following
box: þ
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated
filer and smaller reporting company in
Rule 12b-2
of the Exchange Act. (Check one):
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Large accelerated
filer þ
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Accelerated
filer o
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Non-accelerated
filer o
(Do not check if a smaller reporting company)
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Smaller reporting
company o
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CALCULATION OF REGISTRATION
FEE
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Amount to be
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Registered/Proposed
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Maximum Offering
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Price Pre Unit/Proposed
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Maximum Offering
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Title of Each Class of
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Price/Amount of
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Securities to be Registered
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Registration Fee(1)
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Debt Securities
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Warrants to Purchase Debt Securities
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Common Stock, no par value
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Warrants to Purchase Common Stock
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Stock Purchase Contracts
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Stock Purchase Units
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(1)
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An indeterminate aggregate initial
offering price or number of the securities of each identified
class is being registered as may from time to time be sold at
indeterminate prices. Separate consideration may or may not be
received for securities that are issuable on exercise,
conversion or exchange of other securities. In accordance with
Rule 456(b) and 457(r), the Registrant is deferring payment
of all of the registration fee.
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PROSPECTUS
Archer-Daniels-Midland
Company
Debt
Securities and Warrants to Purchase Debt Securities
Common Stock and Warrants to Purchase Common Stock
Stock Purchase Contracts and Stock Purchase Units
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.
Our common stock is listed on the New York Stock Exchange under
the symbol ADM.
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.
The date of this Prospectus is May 27, 2008.
TABLE OF
CONTENTS
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ABOUT THIS PROSPECTUS
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1
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WHERE YOU CAN FIND MORE INFORMATION
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1
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THE COMPANY
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2
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USE OF PROCEEDS
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2
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RATIO OF EARNINGS TO FIXED CHARGES
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2
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DESCRIPTION OF DEBT SECURITIES
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3
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DESCRIPTION OF CAPITAL STOCK
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16
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DESCRIPTION OF WARRANTS
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18
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DESCRIPTION OF STOCK PURCHASE CONTRACTS AND STOCK PURCHASE
UNITS
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19
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PLAN OF DISTRIBUTION
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20
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EXPERTS
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20
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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, warrants to purchase debt
securities, common stock, warrants to purchase common stock,
stock purchase contracts or stock purchase units in one or more
offerings. We may sell these securities either separately or in
units.
This prospectus provides you with a general description of the
securities we may offer. Each time we sell securities, we will
provide a prospectus supplement that will contain specific
information about the terms of that offering. That 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 us and the securities offered under
this prospectus. That registration statement can be read at the
Securities and Exchange Commission, or 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 SEC. Our SEC filings are
available to the public over the Internet at the SECs 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 100 F Street, N.E.,
Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330
for further information on the operation of the public reference
room. Our SEC filings are also available at the offices of the
New York Stock Exchange and Chicago Stock Exchange. For further
information on obtaining copies of our public filings at the
New York Stock Exchange, you should call
(212) 656-5060,
and for further information on obtaining copies of our public
filings at the Chicago Stock Exchange, you should call
(312) 663-2423.
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 our Annual Report on
Form 10-K
for the year ended June 30, 2007 (which incorporates by
reference certain portions of our definitive Notice and Proxy
Statement for our Annual Meeting of Shareholders held on
November 8, 2007), our Quarterly Reports on
Form 10-Q
for the quarters ended September 30, 2007,
December 31, 2007 and March 31, 2008, our Current
Reports on
Form 8-K
filed with the SEC on July 2, 2007, November 30, 2007,
December 11, 2007, February 7, 2008, and March 5,
2008, and any filings we make with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange 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 by this
prospectus. Notwithstanding the foregoing, unless specifically
stated otherwise, none of the information that we disclose under
Items 2.02 and 7.01 of any Current Report on
Form 8-K
that we may from time to time furnish to the SEC will be
incorporated by reference into, or otherwise included in, this
prospectus.
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:
Secretary
Archer-Daniels-Midland Company
4666 Faries Parkway, Box 1470
Decatur, Illinois 62525
Phone:
(217) 424-5200
1
You should rely only on the information incorporated by
reference or presented in this prospectus or the applicable
prospectus supplement. Neither we, nor any underwriters or
agents, have authorized anyone else to provide you with
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.
THE
COMPANY
We are the world leader in BioEnergy and have a premier position
in the agricultural processing value chain. We are one of the
worlds largest processors of soybeans, corn, wheat and
cocoa. We are a leading manufacturer of biodiesel, ethanol,
soybean oil and meal, corn sweeteners, flour and other
value-added food and feed ingredients.
We were incorporated in Delaware in 1923 as the successor to a
business formed in 1902. Our executive offices are located at
4666 Faries Parkway, Box 1470, Decatur, Illinois 62525. Our
telephone number is
(217) 424-5200.
We maintain an Internet web site at
http://www.admworld.com.
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, we mean
Archer-Daniels-Midland Company, its subsidiaries and their
predecessors unless the context indicates otherwise. When such
terms are used elsewhere in this prospectus, we refer only to
Archer-Daniels-Midland 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 will be available for general
corporate purposes, including:
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meeting our working capital requirements;
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funding capital expenditures and possible acquisitions of, or
investments in, businesses and assets; and
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repaying indebtedness originally incurred for general corporate
purposes.
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Until we use the net proceeds, we will invest them in short-term
or long-term marketable securities or use them to repay
short-term borrowings.
RATIO OF
EARNINGS TO FIXED CHARGES
Set forth below is our consolidated ratio of earnings to fixed
charges for each of the periods presented.
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Fiscal Year Ended
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Nine Months Ended
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June 30,
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March 31,
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2003
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2004
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2005
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2006
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2007
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2008
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2.54x
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2.60
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x
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4.75
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5.23
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6.71
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x
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5.30
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The ratio of earnings to fixed charges is calculated as follows:
(earnings)
(fixed charges)
For purposes of calculating the ratios, earnings consist of:
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pre-tax income from continuing operations before adjustment for
minority interests in income from consolidated subsidiaries or
income or loss from equity investees;
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fixed charges;
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amortization of capitalized interest;
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distributed income of equity investees; and
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our share of pre-tax losses of equity investees for which
charges arising from guarantees are included in fixed charges;
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minus capitalized interest;
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minus preference security dividend requirements of consolidated
subsidiaries; and
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minus the minority interest in pre-tax income of subsidiaries
that have not incurred fixed charges.
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For purposes of calculating the ratios, fixed charges consist of:
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interest expensed and capitalized;
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amortized premiums, discounts and capitalized expenses related
to indebtedness;
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an estimate of the interest portion of rental expense on
operating leases; and
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preference security dividend requirements of consolidated
subsidiaries.
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DESCRIPTION
OF DEBT SECURITIES
This section describes the general terms and provisions of our
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 dated as
of September 20, 2006 between us and The Bank of New York,
as trustee. We have summarized certain terms and provisions of
the indenture in this section. We have also filed the indenture
as an exhibit to the registration statement. You should read the
indenture for additional information before you buy any debt
securities.
Because this section is a summary, it does not describe every
aspect of the debt securities. This summary is subject to, and
qualified in its entirety by reference to, all the provisions of
the indenture, including definitions of certain terms used in
the indenture. For example, in this section we use capitalized
words to signify terms that have been specifically defined in
the indenture. Some of the definitions are repeated herein, but
for the rest you will need to read the indenture. We also
include references in parentheses to certain sections of the
indenture so that you can more easily locate these provisions.
Whenever we refer to particular sections or defined terms of the
indenture in this prospectus or in the applicable prospectus
supplement, such sections or defined terms are incorporated by
reference herein or in the prospectus supplement.
General
The debt securities will be our unsecured and unsubordinated
obligations ranking on parity with all of our other unsecured
and unsubordinated indebtedness.
The indenture does not limit the amount of debt securities that
we may issue and provides that we may issue debt securities from
time to time in one or more series. (Section 301).
Unless otherwise specified in the applicable prospectus
supplement, we may, without the consent of the holders of a
series of debt securities, issue additional debt securities of
that series having the same ranking and the same interest rate,
maturity date and other terms (except for the price to public
and issue date) as such debt securities. Any such additional
debt securities, together with the initial debt securities, will
constitute a single series of debt securities under the
applicable indenture. No additional debt securities of a series
may be issued if an event of default under the applicable
indenture has occurred and is continuing with respect to that
series of debt securities.
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:
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the title of the debt securities of the series;
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any limit on the total principal amount of the debt securities
of that series;
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whether the debt securities will be issuable as registered
securities, bearer securities or both;
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whether any of the debt securities are to be issuable initially
in temporary global form;
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whether any of the debt securities are to be issuable in
permanent global form;
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the person to whom interest on the debt securities is payable,
if such person is not the person in whose name the debt
securities are registered;
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the date or dates on which the debt securities will mature and
our ability to extend such date or dates;
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if the debt securities bear interest:
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the interest rate or rates on the debt securities or the formula
by which the interest rate or rates shall be determined;
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the date or dates from which any interest will accrue;
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any circumstances under which we may defer interest payments;
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the record and interest payment dates for debt securities that
are registered securities;
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the extent to which, or the manner in which, any interest
payable on a global security will be paid if other than in the
manner described below under Global
Securities; and
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whether the interest rate or interest rate formula can be reset
and, if so, the date or dates on which the interest rate or
interest rate formula can be reset;
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the place or places where:
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we can make payments on the debt securities;
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the debt securities can be presented for registration of
transfer or exchange; and
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notice and demands can be given to us relating to the debt
securities and under the indenture;
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the date, if any, after which and the price or prices (and other
applicable terms and provisions) at which we may redeem the
offered debt securities pursuant to any optional or mandatory
redemption provisions that would permit or require us or the
holders of the debt securities to redeem the debt securities
prior to their final maturity;
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any sinking fund or analogous provisions that would obligate us
to redeem the debt securities, in whole or in part, before their
final maturity;
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the denominations in which any debt securities which are
registered debt securities will be issuable, if other than
denominations of $1,000 or multiples of $1,000;
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the denominations in which any debt securities which are bearer
securities will be issuable, if other than denominations of
$5,000;
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the currency or currencies of payment on the debt securities;
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any index used to determine the amount of payments on the debt
securities;
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the portion of the principal payable upon acceleration of the
debt securities following an event of default, if such portion
is other than the principal amount of the debt securities;
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any events of default which will apply to the debt securities in
addition to those contained in the indenture;
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any additional covenants applicable to the debt securities and
whether certain covenants can be waived;
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whether the provisions described below under the heading
Defeasance apply to the debt securities; and
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any other terms and provisions of the debt securities not
inconsistent with the terms and provisions of the indenture.
(Section 301).
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If the purchase price of any of the debt securities is
denominated in a foreign currency or currencies, or if the
principal of and any premium and interest on any series of debt
securities is payable in a foreign currency or currencies, then
the restrictions, elections, general tax considerations,
specific terms and other information with respect to such issue
of debt securities and such foreign currency or currencies will
be set forth in the applicable prospectus supplement.
When we use the term holder in this prospectus with
respect to a registered debt security, we mean the person in
whose name such debt security is registered in the security
register. (Section 101).
Denominations,
Registration and Transfer
We may issue the debt securities as registered securities,
bearer securities or both. We may issue debt securities in the
form of one or more global securities, as described below under
Global Securities. Unless we state otherwise in the
applicable prospectus supplement, registered securities
denominated in U.S. dollars will be issued only in
denominations of $1,000 and multiples of $1,000. Bearer
securities denominated in U.S. dollars will be issued only
in denominations of $5,000 with coupons attached. A global
security will be issued in a denomination equal to the total
principal amount of outstanding debt securities represented by
that global security. The prospectus supplement relating to debt
securities denominated in a foreign currency will specify the
denominations of the debt securities. (Sections 201,
203, 301 and 302).
You may exchange any debt securities of a series for other debt
securities of that series if the other debt securities are
denominated in authorized denominations and have the same
aggregate principal amount and the same terms as the debt
securities that were surrendered for exchange. In addition, if
debt securities of any series are issuable as both registered
securities and as bearer securities, you may, subject to the
terms of the indenture, exchange bearer securities (with all
unmatured coupons, except as provided below, and all matured
coupons in default attached) of the series for registered
securities of the same series of any authorized denominations
and that have the same aggregate principal amount and the same
terms as the debt securities that were surrendered for exchange.
Unless we state otherwise in the applicable prospectus
supplement, any bearer security surrendered in exchange for a
registered security between a record date and the relevant date
for payment of interest must be surrendered without the coupon
relating to such date for payment of interest attached. Interest
will not be payable on the registered security on the relevant
date for payment of interest issued in exchange for the bearer
security, but will be payable only to the holder of such coupon
when due in accordance with the terms of the indenture.
Unless we state otherwise in the applicable prospectus
supplement, bearer securities will not be issued in exchange for
registered securities. (Section 305).
Registered securities may be presented for registration of
transfer, duly endorsed or accompanied by a satisfactory written
instrument of transfer, at the office or agency maintained by us
for that purpose in a place of payment. 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). If
the applicable prospectus supplement refers to any office or
agency, in addition to the security registrar, initially
designated by us where you can surrender the debt securities for
registration of transfer or exchange, we may at any time rescind
the designation of any such office or agency or approve a change
in the location. If debt securities of a series are issuable
only as registered securities, we will be required to maintain a
transfer agent in each place of payment for such series. If debt
securities of a series are issuable as bearer securities, we
will be required to maintain, in addition to the security
registrar, a transfer agent in a place of payment for such
series located outside the United States. We may at any time
designate additional transfer agents with respect to any series
of debt securities. (Section 1002).
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We shall not be required to:
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issue, register the transfer of or exchange debt securities of
any series during a period beginning at the opening of business
15 days before the day of the mailing of a notice of
redemption of debt securities selected to be redeemed and ending
at the close of business on:
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the day of mailing of the relevant notice of redemption, if debt
securities of the series are issuable only as registered
securities, or
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the day of the first publication of the relevant notice of
redemption, if debt securities of the series are issuable as
bearer securities, or
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the day of mailing of the relevant notice of redemption, if debt
securities of that series are also issuable as registered
securities and there is no publication;
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register the transfer of or exchange any registered security
called for redemption, except for the unredeemed portion of any
registered security being redeemed in part; or
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exchange any bearer security called for redemption, except to
exchange the bearer security for a registered security of that
series and like tenor which is immediately surrendered for
redemption. (Section 305).
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Original
Issue Discount Securities
Debt securities may be issued as original issue discount
securities and sold at a discount below their stated principal
amount. If a debt security is an original issue discount
security, 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
applicable indenture. (Sections 101 and 502). The
applicable prospectus supplement will describe the federal
income tax consequences and other special factors you should
consider before purchasing any original issue discount
securities.
Payments
and Paying Agents
Unless we state otherwise in the applicable prospectus
supplement, payment of principal and any premium and interest on
registered securities, other than a global security, will be
made at the office of the paying agent or paying agents we may
designate from time to time. At our option, payment of any
interest may be made (i) by check mailed to the address of
the payee entitled to payment at the address listed in the
security register, or (ii) by wire transfer to an account
maintained by the payee as specified in the security register.
(Sections 305, 307 and 1002). Unless we state
otherwise in the applicable prospectus supplement, payment of
any installment of interest on registered securities will be
made to the person in whose name the registered security is
registered at the close of business on the regular record date
for such interest payment. (Section 307).
Unless we state otherwise in the applicable prospectus
supplement, payment of principal and any premium and interest on
bearer securities will be payable, subject to applicable laws
and regulations, at the offices of the paying agent or paying
agents outside the United States that we may designate from time
to time. At our option, payment of any interest may be made by
check or by wire transfer to an account maintained by the payee
outside the United States. (Sections 307 and 1002).
Unless we state otherwise in the applicable prospectus
supplement, payment of interest on bearer securities on any
interest payment date will be made only upon presentation and
surrender of the coupon relating to that interest payment date.
(Section 1001). No payment on any bearer security
will be made:
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at any of our offices or agencies in the United States;
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by check mailed to any address in the United States; or
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by transfer to an account maintained in the United States.
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6
Neither we nor our paying agents will make payment on bearer
securities or coupons, or upon any other demand for payment, if
you present them to us or our paying agents within the United
States. Notwithstanding the foregoing, payment of principal of
and any premium and interest on bearer securities denominated
and payable in U.S. dollars will be made at the office of
our paying agent in the United States if, and only if, payment
of the full amount payable in U.S. dollars at all offices
or agencies outside the United States is illegal or effectively
precluded by exchange controls or other similar restrictions.
(Section 1002).
Unless we state otherwise in the applicable prospectus
supplement, the principal office of the trustee in New York City
will be designated as our sole paying agent for payments on debt
securities that are issuable only as registered securities. We
will name in the applicable prospectus supplement any paying
agent outside the United States, and any other paying agent in
the United States, initially designated by us for the debt
securities. We may, at any time:
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designate additional paying agents;
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rescind the designation of any paying agent; or
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approve a change in the office through which any paying agent
acts.
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If debt securities of a series are issuable only as registered
securities, we will be required to maintain a paying agent in
each place of payment for that series. If debt securities of a
series are issuable as bearer securities, we will be required to
maintain:
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a paying agent in each place of payment for that series in the
United States for payments on any registered securities of that
series;
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a paying agent in each place of payment located outside the
United States where debt securities of that series and any
coupons may be presented and surrendered for payment. If the
debt securities of that series are listed on The International
Stock Exchange of the United Kingdom and the Republic of
Ireland, the Luxembourg Stock Exchange or any other stock
exchange located outside the United States and such stock
exchange shall so require, then we will maintain a paying agent
in London, Luxembourg City or any other required city located
outside the United States for debt securities of that
series; and
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a paying agent in each place of payment located outside the
United States where, subject to applicable laws and regulations,
registered securities of that series may be surrendered for
registration of transfer or exchange and where notices and
demands to or upon us may be served. (Section 1002).
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Any money that we pay to a paying agent for the purpose of
making payments on the debt securities and that remains
unclaimed two years after the payments were due will be returned
to us. After that time, any holder of a debt security or any
coupon may only look to us for payments on the debt security or
coupon. (Section 1003).
Global
Securities
Global Securities. The debt securities may be
issued initially in book-entry form and represented by one or
more global securities in fully registered form without interest
coupons which will be deposited with the trustee as custodian
for The Depository Trust Company, which we refer to as
DTC, and registered in the name of Cede &
Co. or another nominee designated by DTC. Except as set forth
below, the global securities may be transferred, in whole and
not in part, only to DTC or another nominee of DTC or to a
successor of DTC or its nominee. Beneficial interests in the
global securities may not be exchanged for certificated
securities except in the limited circumstances described below.
All interests in the global securities will be subject to the
rules and procedures of DTC.
Certain Book-Entry Procedures for the Global
Securities. The descriptions of the operations
and procedures of DTC set forth below are provided solely as a
matter of convenience. These operations and procedures are
solely within the control of DTC and are subject to change by
DTC from time to time. We do not take any responsibility for
these operations or procedures, and investors are urged to
contact DTC or its participants directly to discuss these
matters.
7
DTC has advised us that it is:
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a limited-purpose trust company organized under the laws of the
State of New York;
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a banking organization within the meaning of the New
York Banking Law;
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a member of the Federal Reserve System;
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a clearing corporation within the meaning of the New
York Uniform Commercial Code, as amended; and
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a clearing agency registered pursuant to
Section 17A of the Securities Exchange Act of 1934.
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DTC was created to hold securities for its participants and to
facilitate the clearance and settlement of securities
transactions between participants through electronic book-entry
changes to the accounts of its participants, thereby eliminating
the need for physical transfer and delivery of certificates.
DTCs participants include securities brokers and dealers,
banks and trust companies, clearing corporations and certain
other organizations. Indirect access to DTCs system is
also available to other entities such as banks, brokers, dealers
and trust companies, which we refer to collectively as the
indirect participants, that clear through or
maintain a custodial relationship with a participant either
directly or indirectly. Investors who are not participants may
beneficially own securities held by or on behalf of DTC only
through participants or indirect participants.
We expect that, pursuant to procedures established by DTC:
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upon deposit of each global security, DTC will credit, on its
book-entry registration and transfer system, the accounts of
participants with an interest in the global security; and
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ownership of beneficial interests in the global securities will
be shown on, and the transfer of ownership of beneficial
interests in the global securities will be effected only
through, records maintained by DTC (with respect to the
interests of participants) and the participants and the indirect
participants (with respect to the interests of persons other
than participants).
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The laws of some jurisdictions may require that some purchasers
of securities take physical delivery of those securities in
definitive form. Accordingly, the ability to transfer beneficial
interests in the securities represented by a global security to
those persons may be limited. In addition, because DTC can act
only on behalf of its participants, who in turn act on behalf of
persons who hold interests through participants, the ability of
a person holding a beneficial interest in a global security to
pledge or transfer that interest to persons or entities that do
not participate in DTCs system, or to otherwise take
actions in respect of that interest, may be affected by the lack
of a physical security in respect of that interest.
So long as DTC or its nominee is the registered owner of a
global security, DTC or that nominee, as the case may be, will
be considered the sole legal owner or holder of the securities
represented by that global security for all purposes of the
securities and the indenture. Except as provided below, owners
of beneficial interests in a global security will not be
entitled to have the debt securities represented by that global
security registered in their names, will not receive or be
entitled to receive physical delivery of certificated securities
and will not be considered the owners or holders of the
securities represented by that beneficial interest under the
indenture for any purpose, including with respect to the giving
of any direction, instruction or approval to the trustee.
Accordingly, each holder owning a beneficial interest in a
global security must rely on the procedures of DTC and, if that
holder is not a participant or an indirect participant, on the
procedures of the participant through which that holder owns its
interest, to exercise any rights of a holder of securities under
the indenture or that global security. We understand that under
existing industry practice, in the event that we request any
action of holders of securities, or a holder that is an owner of
a beneficial interest in a global security desires to take any
action that DTC, as the holder of that global security, is
entitled to take, DTC would authorize the participants to take
that action and the participants would authorize holders owning
through those participants to take that action or would
otherwise act upon the instruction of those holders. Neither we
nor the trustee will have any responsibility or liability for
any aspect of the records relating to or payments made on
account of securities by DTC or for maintaining, supervising or
reviewing any records of DTC relating to the securities.
8
Payments with respect to the principal of and interest on a
global security will be payable by the trustee to or at the
direction of DTC or its nominee in its capacity as the
registered holder of the global security under the indenture.
Under the terms of the indenture, we and the trustee may treat
the persons in whose names the debt securities, including the
global securities, are registered as the owners thereof for the
purpose of receiving payment thereon and for any and all other
purposes whatsoever. Accordingly, neither we nor the trustee has
or will have any responsibility or liability for the payment of
those amounts to owners of beneficial interests in a global
security. Payments by the participants and the indirect
participants to the owners of beneficial interests in a global
security will be governed by standing instructions and customary
industry practice and will be the responsibility of the
participants and indirect participants and not of DTC.
Transfers between participants in DTC will be effected in
accordance with DTCs procedures and will be settled in
same-day
funds.
Although DTC has agreed to the foregoing procedures to
facilitate transfers of interests in the global securities among
participants in DTC, it is under no obligation to perform or to
continue to perform those procedures, and those procedures may
be discontinued at any time. Neither we nor the trustee will
have any responsibility for the performance by DTC or its
participants or indirect participants of their respective
obligations under the rules and procedures governing their
operations.
We obtained the information in this section and elsewhere in
this prospectus concerning DTC and its book-entry system from
sources that we believe are reliable, but we take no
responsibility for the accuracy of any of this information.
Certificated Securities. We will issue
certificated securities to each person that DTC identifies as
the beneficial owner of the securities represented by the global
securities upon surrender by DTC of the global securities only
if:
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DTC notifies us that it is no longer willing or able to act as a
depository for the global securities, and we have not appointed
a successor depository within 90 days of that notice;
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an event of default has occurred and is continuing; or
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we determine not to have the securities represented by a global
security.
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Neither we nor the trustee will be liable for any delay by DTC,
its nominee or any direct or indirect participant in identifying
the beneficial owners of the related securities. We and the
trustee may conclusively rely on, and will be protected in
relying on, instructions from DTC or its nominee for all
purposes, including with respect to the registration and
delivery, and the respective principal amounts, of the
securities to be issued in certificated form.
Bearer
Debt Securities
If we issue bearer securities, the applicable prospectus
supplement will describe all of the special terms and provisions
of debt securities in bearer form, and the extent to which those
special terms and provisions are different from the terms and
provisions which are described in this prospectus, which
generally apply to debt securities in registered form, and will
summarize provisions of the applicable indenture that relate
specifically to bearer debt securities.
Covenants
Contained in the Indenture
The following definitions are used in this prospectus to
describe certain covenants contained in the indenture.
Attributable Debt means:
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the balance sheet liability amount of capital leases as
determined by generally accepted accounting principles, plus
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the amount of future minimum operating lease payments required
to be disclosed by generally accepted accounting principles,
less any amounts required to be paid on account of maintenance
and repairs, insurance, taxes, assessments, water rates and
similar charges, discounted using the methodology used to
calculate the present value of operating lease payments in our
most recent Annual Report to Shareholders reflecting that
calculation.
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The amount of Attributable Debt relating to an operating lease
that can be terminated by the lessee with the payment of a
penalty will be calculated based on the lesser of:
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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
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the aggregate amount of lease payments required to be made
during the remaining term of the lease.
(Section 101).
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Consolidated Net Tangible Assets means the
total amount of our assets, minus applicable reserves and other
properly deductible items, minus
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all current liabilities, excluding Funded Debt included by
reason of being renewable or extendible, and
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all goodwill, trade names, patents, unamortized debt discount
and expense, and other similar intangibles to the extent not
deducted as reserves and deductible items set forth above,
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all as set forth on our most recent consolidated balance sheet.
(Section 101).
Funded Debt means:
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Indebtedness that matures more than 12 months after the
time of the computation of the amount thereof or that is
extendible or renewable to a time more than 12 months after
the time of the computation of the amount thereof;
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all guarantees of any such Indebtedness or of dividends, other
than any guarantee in connection with the sale or discount by us
or any Restricted Subsidiary of accounts receivable, trade
acceptances and other paper arising in the ordinary course of
business; and
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all preferred stock of any Subsidiary, taken at the greater of
its voluntary or involuntary liquidation price at the time of
any calculation hereunder, but exclusive of accrued dividends,
if any.
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Funded Debt does not include any amount in respect of
obligations under leases, or guarantees thereof, whether or not
such obligations or guarantees would be included as liabilities
on a consolidated balance sheet. (Section 101).
Indebtedness means, except as set forth in
the next sentence:
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all items of indebtedness or liability, except capital and
surplus, which under generally accepted accounting principles
would be included in total liabilities on the liability side of
a balance sheet as of the date that indebtedness is being
determined; and
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guarantees, endorsements (other than for purposes of collection)
and other contingent obligations relating to, or to purchase or
otherwise acquire, indebtedness of others, unless the amount is
included in the preceding bullet point.
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Indebtedness does not include any obligations or guarantees of
obligations relating to lease rentals, even if the obligations
or guarantees of obligations relating to lease rentals would be
included as liabilities on the consolidated balance sheet of us
and our Restricted Subsidiaries. (Section 101).
Principal Domestic Manufacturing Property
means any building, structure or other facility, together with
the land on which it is erected and fixtures that are part of
such building, located in the United States that is used by us
or our Subsidiaries primarily for manufacturing, processing or
warehousing, the gross book value of which exceeds 1% of our
Consolidated Net Tangible Assets, other than any such building,
10
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that is financed by obligations issued by a state, territory or
possession of the United States, or any of their political
subdivisions, the interest on which is excludable from gross
income of the holders pursuant to Section 103(a)(1) of the
Internal Revenue Code, or
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that is not of material importance to the total business
conducted by us and our Subsidiaries, taken as a whole.
(Section 101).
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A Restricted Subsidiary is any Subsidiary of
ours, but does not include a Subsidiary (i) that does not
transact any substantial portion of its business in the United
States and does not regularly maintain any substantial portion
of its fixed assets in the United States, or (ii) that is
engaged primarily in financing our operations or the operations
of our Subsidiaries, or both. (Section 101).
Secured Funded Debt means Funded Debt which
is secured by a mortgage, lien or other similar encumbrance upon
any of our assets or those of our Restricted Subsidiaries.
(Section 101).
A Subsidiary is a corporation or other entity
in which we, or one or more of our other Subsidiaries, directly
or indirectly, own more than 50% of the outstanding voting
equity interests. (Section 101).
Wholly-owned Restricted Subsidiary means any
Restricted Subsidiary in which we and our other Wholly-owned
Restricted Subsidiaries own all of the outstanding Funded Debt
and capital stock (other than directors qualifying
shares). (Section 101).
Restrictions
on Secured Funded Debt
The indenture limits the amount of Secured Funded Debt that we
and our Restricted Subsidiaries may incur or otherwise create,
including by guarantee. Neither we nor our Restricted
Subsidiaries may incur or otherwise create any new Secured
Funded Debt unless immediately after the incurrence or creation:
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the aggregate principal amount of all of our outstanding Secured
Funded Debt and that of our Restricted Subsidiaries (other than
certain categories of Secured Funded Debt discussed below), plus
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the aggregate amount of our Attributable Debt and that of our
Restricted Subsidiaries relating to sale and leaseback
transactions,
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does not exceed 15% of our Consolidated Net Tangible Assets.
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This limitation does not apply if the outstanding debt
securities are secured equally and ratably with or prior to the
new Secured Funded Debt. (Section 1007).
The following categories of Secured Funded 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 Funded Debt:
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Secured Funded Debt of a Restricted Subsidiary owing to us or to
one of our Wholly-owned Restricted Subsidiaries;
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Secured Funded 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;
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Secured Funded Debt resulting from a mortgage, lien or other
similar encumbrance on property, shares of stock or Indebtedness
of any company existing at the time that the company becomes one
of our Subsidiaries;
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Secured Funded Debt resulting from a mortgage, lien or other
similar encumbrance on property, shares of stock or Indebtedness
which (1) exists at the time that the property, shares of
stock or Indebtedness 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
Indebtedness or (3) secures any Indebtedness incurred prior
to, at the time of, or within 120 days after, the
acquisition of the property, shares of stock or Indebtedness or
the completion
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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 Indebtedness, provided that, in all
cases, we continue to comply with the covenant relating to
mergers and consolidations discussed under the heading
Restrictions on Mergers and Sales of Assets below.
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Secured Funded Debt resulting from 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; and
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any extension, renewal or refunding of (1) any Secured
Funded Debt permitted under the first paragraph under the
heading Restrictions on Secured Funded Debt or
(2) any Secured Funded Debt outstanding as of the date of
the indenture. (Section 1007).
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Restrictions
on Sale and Leaseback Transactions
Under the indenture, neither we nor any Restricted Subsidiary
may enter into any sale and leaseback transaction involving a
Principal Domestic Manufacturing Property, except a sale by a
Restricted Subsidiary to us or another Restricted Subsidiary or
a lease not exceeding three years, by the end of which we intend
to discontinue use of the property, and except for any
transaction with a local or state authority that provides
financial or tax benefits, unless:
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the net proceeds of the sale are at least equal to the fair
market value of the property; and
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within 120 days of the transfer, or two years if we hold
the net proceeds of the sale in cash or cash equivalents, we
purchase and retire debt securities
and/or repay
Funded Debt
and/or make
expenditures for the expansion, construction or acquisition of a
Principal Domestic Manufacturing Property at least equal to the
net proceeds of the sale.
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In addition, the restriction does not apply if the aggregate
principal amount of the fair market value of the property
transferred in a sale and leaseback transaction and all Secured
Funded Debt does not exceed 15% of our Consolidated Net Tangible
Assets. (Sections 1007, 1008).
Restrictions
on Mergers and Sales of Assets
The indenture generally permits a consolidation or merger
between us and another entity. It also permits the sale or
transfer by us of all or substantially all of our property and
assets. These transactions are permitted so long as:
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the resulting or acquiring entity, if other than us, is
organized and existing under the laws of a United States
jurisdiction and 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;
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immediately after the transaction, and giving effect to the
transaction, no event of default under the indenture exists;
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steps have been taken to secure the debt securities equally and
ratably with all indebtedness secured by a mortgage, lien or
other similar encumbrance if as a result of such transaction,
our properties or assets or Restricted Subsidiaries
properties or assets would become subject to such mortgage, lien
or other similar encumbrance not permitted pursuant to the
provisions discussed above under the heading Restrictions
on Secured Funded Debt without equally and ratably
securing the debt securities; and
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we have delivered to the trustee an officers certificate
and an opinion of counsel, each stating that the transaction
and, if a supplemental indenture is required in connection with
the transaction, the supplemental indenture comply with the
indenture and that all conditions precedent to the transaction
contained in the indenture have been satisfied.
(Section 801).
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If we consolidate or merge with or into any other entity or sell
or lease all or substantially all of our assets according to the
terms and conditions of the indenture, the resulting or
acquiring entity will be
12
substituted for us in the indenture with the same effect as if
it had been an original party to the indenture. As a result,
such successor entity may exercise our rights and powers under
the indenture, in our name and, except in the case of a lease,
we will be released from all our liabilities and obligations
under the indenture and under the debt securities and coupons.
(Section 802).
Notwithstanding the foregoing provisions, we may transfer all of
our property and assets to another corporation if, immediately
after giving effect to the transfer, such corporation is our
Wholly-owned Restricted Subsidiary and we would be permitted to
become liable for an additional amount of Secured Funded Debt.
(Section 803).
Modification
and Waiver
Under the indenture, certain of our rights and obligations and
certain of the rights of the holders of the debt securities may
be modified or amended with the consent of the holders of a
majority of the total principal amount of the outstanding debt
securities of all series of debt securities affected by the
modification or amendment, acting together as a class. However,
the following modifications and amendments will not be effective
against any holder without its consent:
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a change in the stated maturity date of any payment of principal
or interest;
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a reduction in the principal amount of, or premium or interest
on, any debt security or any change in the interest rate or
method of calculating the interest rate applicable to any debt
security;
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a change in the premium payable upon redemption of any debt
security;
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a reduction in the amount of principal of an original issue
discount debt security due and payable upon acceleration of the
maturity of such debt security;
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a change in place of payment where, or the currency in which,
any payment on the debt securities is payable;
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an impairment of a holders right to sue us for the
enforcement of payments due on the debt securities; or
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a reduction in the percentage of outstanding debt securities of
any series required to consent to a modification or amendment of
the indenture or required to consent to a waiver of compliance
with certain provisions of the indenture or certain defaults
under the indenture. (Section 902).
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Under the indenture, the holders of at least a majority of the
total principal amount of the outstanding debt securities of any
series of debt securities may waive compliance by us with
certain restrictive provisions of the indenture, on behalf of
all holders of all series of debt securities to which such
restrictive provision applies. (Section 1010).
Under the indenture, the holders of at least a majority of the
total principal amount of the outstanding debt securities may,
on behalf of all holders of such series of debt securities,
waive any past default under the indenture, except:
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a default in the payment of the principal of, or any premium or
interest on, any debt securities of that series; or
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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).
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Events of
Default
Event of Default, when used in the indenture
with respect to any series of debt securities, means any of the
following:
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failure to pay interest on any debt security of that series for
30 days after the payment is due;
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failure to pay the principal of, or any premium on, any debt
security of that series when due;
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failure to deposit any sinking fund payment on debt securities
of that series when due;
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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;
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default in respect of any Indebtedness for money borrowed by us
or any consolidated Subsidiary, or under any mortgage, indenture
or instrument under which such Indebtedness is issued or
secured, including a default with respect to debt securities of
any other series, which default results in the acceleration of
Indebtedness with an aggregate outstanding principal amount in
excess of $50,000,000, unless the acceleration is rescinded, or
such debt is paid or waived within 10 days after we have
received written notice of the default in the manner specified
in the indenture;
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certain events in bankruptcy, insolvency or
reorganization; or
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any other Event of Default that may be specified for the debt
securities of that series when that series is created.
(Section 501).
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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,
except that, if the Event of Default is caused by certain events
in bankruptcy, insolvency or reorganization, the entire
principal of all of the debt securities of the series will
become due and payable immediately without any act on the part
of the trustee or holders of the debt securities. If such a
declaration occurs, the holders of a majority of the aggregate
principal amount of the outstanding debt securities of that
series can, subject to conditions, rescind the declaration.
(Section 502).
The prospectus supplement relating to a 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
the series when an Event of Default occurs and continues.
The indenture requires us to file an officers certificate
with the trustee each year that states, to the knowledge of the
certifying officers, no defaults exist under the terms of the
indenture. (Section 1009). 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. For purposes
of this paragraph, default means any event which is,
or after notice or lapse of time or both would become, an Event
of Default under the indenture with respect to the debt
securities of the applicable series. (Section 602).
Other than its duties in the case of an Event of 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 of debt securities, unless the holders offer the trustee
reasonable indemnification. (Sections 601, 603). If
reasonable indemnification is provided, then, subject to other
rights of the trustee, the holders of a majority in aggregate
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:
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conducting any proceeding for any remedy available to the
trustee; or
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exercising any trust or power conferred upon the trustee.
(Sections 512, 603).
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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:
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the holder has previously given the trustee written notice of a
continuing Event of Default with respect to the debt securities
that series;
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the holders of at least 25% in aggregate principal amount of the
outstanding debt securities of that series have made a written
request to the trustee to begin such proceeding;
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the holder has offered to the trustee reasonable indemnification;
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the trustee has not started such proceeding within
60 days after receiving the request; and
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the trustee has not received directions inconsistent with such
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).
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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 this payment. (Section 508).
Defeasance
The indenture includes provisions allowing defeasance of the
debt securities of any series. In order to defease a series of
debt securities, we would deposit with the trustee or another
trustee money or U.S. Government Obligations sufficient to
make all payments on those debt securities. If we make a
defeasance deposit with respect to a series of debt securities,
we may elect either:
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to be discharged from all of our obligations on that series of
debt securities, except for our obligations to register
transfers and exchanges, to replace temporary or mutilated,
destroyed, lost or stolen debt securities, to maintain an office
or agency in respect of the debt securities and to hold moneys
for payment in trust; or
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to be released from our restrictions described above relating to
mergers and sales of assets, Secured Funded Debt and sale and
leaseback transactions.
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To establish the trust, we must deliver to the trustee an
opinion of our counsel that the holders of that series of debt
securities will not recognize income, gain or loss for federal
income tax purposes as a result of the defeasance and will be
subject to federal income tax on the same amount, in the same
manner and at the same times as would have been the case if the
defeasance had not occurred. (Sections 403 and 1011).
The term U.S. Government Obligations means
direct obligations of the United States of America backed by the
full faith and credit of the United States.
(Section 101).
Notices
Unless we state otherwise in the applicable prospectus
supplement, we will give notices to holders of bearer securities
by publication in a daily newspaper in the English language of
general circulation in New York City. As long as the bearer
securities are listed on the Luxembourg Stock Exchange and such
exchange requires publication of notice in a daily newspaper of
general circulation in Luxembourg City, we will give notices to
holders of bearer securities in such paper or, if not practical,
elsewhere in Western Europe. We expect to publish notices in
The Wall Street Journal, the Financial Times and
the Luxemburger Wort. We will give notices by mail to
holders of registered securities at the addresses listed in the
security register. (Section 106).
Title
Title to any bearer securities and any coupons issued with any
bearer securities will pass by delivery. We and the trustee, and
any of our or the trustees agents, may treat the bearer of
any bearer security, the bearer of any coupon and the registered
owner of any registered security as the owner of the security or
coupon, whether or not the debt security or coupon shall be
overdue and notwithstanding any notice to the contrary, for the
purpose of making payment and for all other purposes.
(Section 308).
Replacement
of Securities and Coupons
We will replace any mutilated security, or a mutilated coupon
issued with a security, at the holders expense upon
surrender of the security to the trustee. We will replace
destroyed, lost or stolen securities or coupons at the
holders expense upon delivery to the trustee of the
security and coupons or evidence of the destruction, loss or
theft satisfactory to us and the trustee. If any coupon becomes
destroyed, stolen or lost, we
15
will replace it by issuing a new security in exchange for the
security with which the coupon was issued. In the case of a
destroyed, lost or stolen security or coupon, an indemnity
satisfactory to the trustee and us may be required at the
holders expense before we will issue a replacement
security. (Section 306).
Governing
Law
The indenture and the debt securities will be governed by, and
construed in accordance with, the laws of the State of New York.
(Section 114).
Information
Concerning the Trustee
The Bank of New York is the trustee under the indenture. From
time to time, we maintain deposit accounts and conduct other
banking transactions with the trustee in the ordinary course of
business. The Bank of New York also serves as trustee for
certain of our other senior unsecured debt obligations.
DESCRIPTION
OF CAPITAL STOCK
General
The following description of our capital stock is subject to and
qualified in its entirety by our certificate of incorporation
and bylaws, which are incorporated by reference in the
registration statement of which this prospectus forms a part,
and by the provisions of applicable Delaware law. Under our
certificate of incorporation, we are authorized to issue up to
1,000,000,000 shares of common stock without par value and
500,000 shares of preferred stock without par value.
Voting
Rights
Each holder of our common stock is entitled to one vote per
share on all matters to be voted upon by the stockholders.
Dividends
Subject to preferences that may be applicable to any outstanding
preferred stock, the holders of our common stock are entitled to
receive ratably such dividends, if any, as may be declared from
time to time by the board of directors out of funds legally
available for that purpose.
Rights
Upon Liquidation
In the event of our liquidation, dissolution or winding up, the
holders of our common stock are entitled to share ratably in all
assets remaining after payment of liabilities, subject to prior
distribution rights of preferred stock, if any, then outstanding.
Preemptive
or Conversion Rights
The holders of our common stock have no preemptive or conversion
rights or other subscription rights. There are no redemption or
sinking fund provisions applicable to the common stock.
Preferred
Stock
The board of directors has the authority, without action by the
stockholders, to designate and issue preferred stock in one or
more series and to designate certain rights, preferences and
privileges of each series, which may be greater than the rights
of the common stock. It is not possible to state the actual
effect of the issuance of any shares of preferred stock upon the
rights of holders of the common stock until the board of
directors determines the specific rights of the holders of such
preferred stock. However, the effects might include, among other
things:
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restricting dividends on the common stock;
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diluting the voting power of the common stock;
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impairing the liquidation rights of the common stock; or
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delaying or preventing a change in control of us without further
action by the stockholders.
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No shares of preferred stock are outstanding, and we have no
present plans to issue any shares of preferred stock.
Anti-Takeover
Effects of Our Certificate and Bylaws and Delaware Law
Some provisions of Delaware law and our certificate of
incorporation and bylaws could make the following more difficult:
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acquisition of us by means of a tender offer;
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acquisition of us by means of a proxy contest or
otherwise; or
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removal of our incumbent officers and directors.
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These provisions, summarized below, are expected to discourage
coercive takeover practices and inadequate takeover bids. These
provisions are also designed to encourage persons seeking to
acquire control of us to first negotiate with our board. We
believe that these provisions give our board the flexibility to
exercise its fiduciary duties in a manner consistent with the
interests of our shareholders.
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STOCKHOLDER MEETINGS. Under our bylaws, the
board of directors, the chairman of the board, the president or
the executive committee of the board may call special meetings
of stockholders. Only stockholders owning a majority of our
outstanding capital stock may request the secretary to call a
special meeting.
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REQUIREMENTS FOR ADVANCE NOTIFICATION OF STOCKHOLDER
NOMINATIONS AND PROPOSALS. Our bylaws establish
advance notice procedures with respect to stockholder proposals
and the nomination of candidates for election as directors,
other than nominations made by or at the direction of the board
of directors or a committee of the board of directors.
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DELAWARE LAW. We are subject to
Section 203 of the Delaware General Corporation Law. In
general, Section 203 prohibits a publicly held Delaware
corporation from engaging in a business combination
with an interested stockholder for a period of three
years following the date the person became an interested
stockholder, unless the business combination or the
transaction in which the person became an interested stockholder
is approved in a prescribed manner. Generally, a business
combination includes a merger, asset or stock sale, or
other transaction resulting in a financial benefit to the
interested stockholder. Generally, an interested
stockholder is a person who, together with affiliates and
associates, owns or within three years prior to the
determination of interested stockholder status, did own, 15% or
more of a corporations voting stock. The existence of this
provision may have an anti-takeover effect with respect to
transactions not approved in advance by the board of directors,
including discouraging attempts that might result in a premium
over the market price for the shares of common stock held by
stockholders.
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CERTAIN REQUIREMENTS FOR STOCKHOLDER ACTION BY WRITTEN
CONSENT. Our certificate of incorporation
provides that certain procedures, including notifying the board
of directors and awaiting a record date, must be followed for
stockholders to act by written consent without a meeting.
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NO CUMULATIVE VOTING. Our certificate of
incorporation and bylaws do not provide for cumulative voting in
the election of directors.
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UNDESIGNATED PREFERRED STOCK. The
authorization of undesignated preferred stock makes it possible
for the board of directors to issue preferred stock with voting
or other rights or preferences that could impede the success of
any attempt to change control of us. These and other provisions
may have the effect of deferring hostile takeovers or delaying
changes in control or management of us.
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Transfer
Agent and Registrar
The transfer agent and registrar for our common stock is Hickory
Point Bank & Trust, fsb.
17
DESCRIPTION
OF WARRANTS
We may issue warrants for the purchase of our debt securities
issued under the indenture or for the purchase of our common
stock. We may issue warrants alone or together with any debt
securities or common stock offered by any prospectus supplement,
and warrants may be attached to or separate from the debt
securities or common stock. As stated in the prospectus
supplement relating to the particular issue of warrants, we will
issue the warrants under one or more warrant agreements that we
will enter into with a bank or trust company, as warrant agent.
The warrant agent will act solely as our agent in connection
with the warrant certificates. The warrant agent will not assume
any obligation or relationship of agency or trust for or with
any holder of warrant certificates or beneficial owners of
warrants. We have summarized certain terms and provisions of the
form of warrant agreement in this section. We have also filed
the form of warrant agreement as an exhibit to the registration
statement of which this prospectus forms a part. You should read
the warrant agreement for additional information before you buy
any warrants.
General
If we offer warrants, the applicable prospectus supplement will
identify the warrant agent and describe the terms of the
warrants, including the following:
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the offering price;
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the currency for which warrants may be purchased;
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the designation, aggregate principal amount, currency of
denomination and payment, and terms of the debt securities or
common stock purchasable upon exercise of the warrants;
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if applicable, the designation and terms of the debt securities
or common stock issued with the warrants and the number of
warrants issued with the debt securities or common stock;
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if applicable, the date on and after which the warrants and the
related debt securities or common stock will be separately
transferable;
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the principal amount of debt securities or common stock
purchasable upon exercise of one warrant, and the price at and
the currency in which the principal amount of debt securities or
common stock may be purchased upon such exercise;
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the date on which the right to exercise the warrants shall
commence and the date on which the right to exercise shall
expire;
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United States federal income tax considerations;
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whether the warrants will be issued in registered or bearer
form; and
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any other terms of the warrants.
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You may, at the corporate trust offices of the warrant agent or
any other office indicated in the applicable prospectus
supplement:
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exchange warrant certificates for new warrant certificates of
different denominations;
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if the warrant certificates are in registered form, present them
for registration of transfer; and
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exercise warrant certificates.
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Before exercising warrants, holders of warrants will not have
any of the rights of holders of the debt securities or common
stock purchasable upon exercise, including the right to receive
payments on the debt securities or common stock purchasable upon
exercise or to enforce covenants in the indenture.
Exercise
of Warrants
Each warrant will entitle the holder to purchase the principal
amount of debt securities or common stock at the exercise price
set forth in the applicable prospectus supplement. You may
exercise warrants at any time
18
up to 5:00 p.m., New York City time, on the expiration date
set forth in the applicable prospectus supplement. After the
close of business on the expiration date (or such later date to
which we may extend the expiration date), unexercised warrants
will become void.
You may exercise warrants by delivering payment to the warrant
agent as provided in the applicable prospectus supplement of the
amount required to purchase the debt securities or common stock,
together with certain information set forth on the reverse side
of the warrant certificate. Warrants will be deemed to have been
exercised upon receipt of the exercise price, subject to the
receipt within five business days of the warrant certificate
evidencing such warrants. Upon receipt of payment and the
warrant certificate properly completed and duly executed at the
corporate trust office of the warrant agent, or any other office
indicated in the applicable prospectus supplement, we will, as
soon as practicable, issue and deliver the debt securities or
common stock purchased. If fewer than all of the warrants
represented by the warrant certificate are exercised, we will
issue a new warrant certificate for the remaining amount of
warrants.
DESCRIPTION
OF STOCK PURCHASE CONTRACTS
AND STOCK PURCHASE UNITS
The following is a general description of the terms of the stock
purchase contracts and stock purchase units we may issue from
time to time.
The applicable prospectus supplement will describe the terms of
any stock purchase contracts or stock purchase units and, if
applicable, prepaid stock purchase contracts. The description in
the prospectus supplement will be qualified in its entirety by
reference to (1) the stock purchase contracts, (2) the
collateral arrangements and depositary arrangements, if
applicable, relating to such stock purchase contracts or stock
purchase units and (3) if applicable, the prepaid stock
purchase contracts and the document pursuant to which such
prepaid stock purchase contracts will be issued.
Stock
Purchase Contracts
We may issue stock purchase contracts, including contracts
obligating holders to purchase from us, and obligating us to
sell to holders, a fixed or varying number of shares of common
stock at a future date or dates. The consideration per share of
common stock may be fixed at the time that the stock purchase
contracts are issued or may be determined by reference to a
specific formula set forth in the stock purchase contracts. Any
stock purchase contract may include anti-dilution provisions to
adjust the number of shares issuable pursuant to such stock
purchase contract upon the occurrence of certain events.
Stock
Purchase Units
The stock purchase contracts may be issued separately or as a
part of units (stock purchase units), consisting of
a stock purchase contract and debt securities, or debt or equity
obligations of third parties, including U.S. Treasury
securities, in each case securing holders obligations to
purchase shares of common stock under the stock purchase
contracts. The stock purchase contracts may require us to make
periodic payments to holders of the stock purchase units, or
vice versa, and such payments may be unsecured or prefunded and
may be paid on a current or on a deferred basis. The stock
purchase contracts may require holders to secure their
obligations thereunder in a specified manner and in certain
circumstances we may deliver newly issued prepaid stock purchase
contracts upon release to a holder of any collateral securing
such holders obligations under the original stock purchase
contract. Any one or more of the above securities, common stock
or the stock purchase contracts or other collateral may be
pledged as security for the holders obligations to
purchase or sell the shares of common stock under the stock
purchase contracts. The stock purchase contracts may also allow
the holders, under certain circumstances, to obtain the release
of the security for their obligations under such contracts by
depositing with the collateral agent as substitute collateral
U.S. Treasury securities with a principal amount at
maturity equal to the collateral so released or the maximum
number of shares deliverable by such holders under stock
purchase contracts requiring the holders to sell shares of
common stock to us.
19
PLAN OF
DISTRIBUTION
General
We may sell securities to or through underwriters, agents or
broker-dealers or directly to purchasers. As set forth in the
applicable prospectus supplement, we may offer debt securities
or common stock alone or with warrants (which may or may not be
detachable from the debt securities or common stock), and we may
offer the warrants alone. If we issue any warrants, debt
securities or common stock will be issuable upon exercise of the
warrants. We also may offer stock purchase contracts alone, or
as part of stock purchase units. We may offer the securities in
exchange for our outstanding indebtedness.
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 underwriting discounts and
commissions, 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 securities offered under this prospectus are issued in
exchange for our outstanding securities, the applicable
prospectus supplement will set forth the terms of the exchange,
identity and sale of the securities offered under this
prospectus by the selling security holders.
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.
When we issue the securities offered by this prospectus, they
may be new securities without an established trading market. If
we sell a security offered by 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 by this
prospectus.
Each underwriter, dealer and agent participating in the
distribution of any debt securities that are issuable as bearer
securities will agree that it will not offer, sell or deliver,
directly or indirectly, bearer securities in the United States
or to United States persons (other than a Qualifying Foreign
Branch of a United States Financial Institution) in connection
with the original issuance of any debt securities.
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.
EXPERTS
The consolidated financial statements included in
Archer-Daniels-Midland Companys Annual Report on
Form 10-K
for the year ended June 30, 2007 (including the schedule
appearing therein), and Archer-Daniels-Midland Company
managements assessment of the effectiveness of internal
control over financial reporting as of June 30, 2007
included therein, have been audited by Ernst & Young
LLP, independent registered public accounting firm, as set forth
in its reports thereon, included therein, and incorporated
herein by reference. Such consolidated financial statements and
managements assessment are incorporated herein by
reference in reliance upon such reports given on the authority
of such firm as experts in accounting and auditing.
20
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
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Item 14.
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Other
Expenses of Issuance and Distribution
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The expenses of this offering (all of which are to be paid by
the registrant) are estimated to be as follows:
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Securities and Exchange Commission registration fee
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$
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*
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Legal services
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**
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Accounting services
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**
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Charges of Trustee
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**
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Charges of Warrant Agent
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**
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Rating agency fees
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**
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Printing
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**
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Miscellaneous
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**
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Total
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$
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**
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* |
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In accordance with Rules 456(b) and 457(r), the registrant
is deferring payment of all of the registration fee. |
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These fees are calculated based on the number of issuances and
amount of securities offered and accordingly cannot be estimated
at this time. |
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Item 15.
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Indemnification
of Directors and Officers
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Under Delaware law, a corporation may indemnify any person who
was or is a party or is threatened to be made a party to an
action (other than an action by or in the right of the
corporation) by reason of his service as a director, officer,
employee or agent of the corporation, or his service, at the
corporations request, as a director, officer, employee or
agent of another corporation or other enterprise, against
expenses (including attorneys fees) that are actually and
reasonably incurred by him (Expenses), and
judgments, fines and amounts paid in settlement that are
actually and reasonably incurred by him, in connection with the
defense or settlement of such action, provided that he acted in
good faith and in a manner he reasonably believed to be in or
not opposed to the corporations best interests, and, with
respect to any criminal action or proceeding, had no reasonable
cause to believe that his conduct was unlawful. Although
Delaware law permits a corporation to indemnify any person
referred to above against Expenses in connection with the
defense or settlement of an action by or in the right of the
corporation, provided that he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the
corporations best interests, if such person has been
judged liable to the corporation, indemnification is only
permitted to the extent that the Court of Chancery (or the court
in which the action was brought) determines that, despite the
adjudication of liability, such person is entitled to indemnity
for such Expenses as the court deems proper. The General
Corporation Law of the State of Delaware also provides for
mandatory indemnification of any director, officer, employee or
agent against Expenses to the extent such person has been
successful in any proceeding covered by the statute. In
addition, the General Corporation Law of the State of Delaware
permits (i) Delaware corporations to include a provision in
their certificates of incorporation limiting or eliminating the
personal liability of a director to a corporation or its
stockholders, under certain circumstances, for monetary damages
or breach of fiduciary duty as a director and (ii) the
general authorization of advancement of a directors or
officers litigation expenses, including by means of a
mandatory charter or by-law provision to that effect, in lieu of
requiring the authorization of such advancement by the board of
directors in specific cases. In addition, the General
Corporation Law of the State of Delaware provides that
indemnification and advancement of expenses
II-1
provided by the statute shall not be deemed exclusive of any
other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw,
agreement or otherwise.
Article Fourteenth of the Certificate of Incorporation of
the registrant and Article VI of the Bylaws of the
registrant each provide for the indemnification of the directors
and officers of the registrant and limit the personal monetary
liability of directors of the registrant to the fullest extent
permitted by current Delaware law. The registrant has also
entered into indemnification contracts with certain of its
directors and officers. The registrant also maintains insurance
coverage relating to certain liabilities of its directors and
officers.
The exhibits to this registration statement are listed on the
Exhibit Index to this registration statement, which
Exhibit Index is hereby incorporated by reference.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) to include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no
more than a 20% change in the maximum aggregate offering price
set forth in the Calculation of Registration Fee
table in the effective registration statement;
(iii) to include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however, that: paragraphs (a)(1)(i), (a)(1)(ii)
and (a)(1)(iii) of this section do not apply if the information
required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or
furnished to the Commission by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the
registration statement, or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is part of the
registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at 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.
(4) That, for the purpose of determining liability under
the Securities Act of 1933 to any purchaser:
(A) Each prospectus filed by the registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the registration
statement as of the date the filed prospectus was deemed part of
and included in the registration statement; and
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(B) Each prospectus required to be filed pursuant to Rule
424(b)(2), (b)(5), or (b)(7) as part of a registration statement
in reliance on Rule 430B relating to an offering made
pursuant to Rule 415(a)(1)(i), (vii) or (x) for the
purpose of providing the information required by
Section 10(a) of the Securities Act of 1933 shall be deemed
to be part of and included in the registration statement as of
the earlier of the date such form of prospectus is first used
after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As
provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date
shall be deemed to be a new effective date of the registration
statement relating to the securities in the registration
statement to which that prospectus relates, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof. Provided, however,
that no statement made in a registration statement or prospectus
that is part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or
made in any such document immediately prior to such effective
date.
(5) That, for the purpose of determining liability of the
registrant under the Securities Act of 1933 to any purchaser in
the initial distribution of the securities, the undersigned
registrant undertakes that in a primary offering of securities
of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell
the securities to the purchaser, if the securities are offered
or sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to
the purchaser and will be considered to offer or sell such
securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the
undersigned registrant relating to the offering required to be
filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned registrant or used
or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about
the undersigned registrant or its securities provided by or on
behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the
offering made by the undersigned registrant to the purchaser.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act
of 1933, each filing of the registrants annual report
pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plans annual report pursuant
to 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 indemnification
against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Decatur, State of Illinois, on May 27, 2008.
ARCHER-DANIELS-MIDLAND COMPANY
David J. Smith,
Executive Vice President, Secretary and General Counsel
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed on May 27, 2008 by
the following persons in the capacities indicated:
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*
Patricia
A. Woertz
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Chairman of the Board of Directors, Chief
Executive Officer, President and Director
(Principal Executive Officer)
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/s/ Steven
R. Mills
Steven
R. Mills
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Executive Vice President and
Chief Financial Officer
(Principal Financial Officer)
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/s/ John
Stott
John
Stott
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Vice President and Controller
(Principal Accounting Officer)
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*
Alan
L. Boeckmann,
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Director
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George
W. Buckley,
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Director
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*
Mollie
Hale Carter,
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Director
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*
Victoria
F. Haynes,
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Director
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*
Antonio
Maciel Neto,
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Director
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*
Patrick
J. Moore,
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Director
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II-4
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*
M.
Brian Mulroney,
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Director
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*
Thomas
F. ONeill,
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Director
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*
Kelvin
R. Westbrook
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Director
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* |
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David J. Smith, by signing his name hereto, does hereby sign
this document on behalf of each of the above named officers and
directors of the Registrant pursuant to powers of attorney duly
executed by such persons. |
David J. Smith
Attorney-in-fact
II-5
EXHIBIT INDEX
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Exhibit
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No.
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Exhibit
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1(1)
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Form of Underwriting Agreement with respect to Debt Securities
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4
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.1(2)
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Indenture dated as of September 20, 2006 between the
Registrant and The Bank of New York, as Trustee
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4
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.2
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Form of First Supplemental Indenture between the Registrant and
The Bank of New York, as Trustee
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4
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.3
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Form of Debenture due 2041 (included in Exhibit 4.2)
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4
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.4
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Form of Purchase Contract and Pledge Agreement among the
Registrant, The Bank of New York as Purchase Contract Agent, and
The Bank of New York as Collateral Agent, Custodial Agent, and
Securities Intermediary
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4
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.5
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Form of Corporate Unit (included in Exhibit 4.4)
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4
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.6
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Form of Treasury Unit (included in Exhibit 4.4)
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4
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.7
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Form of Remarketing Agreement (included in Exhibit 4.4)
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5
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Opinion of Faegre & Benson LLP
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12
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Calculation of Ratio of Earnings to Fixed Charges
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23
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.1
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Consent of Ernst & Young LLP
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23
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.2
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Consent of Faegre & Benson LLP (included in
Exhibit 5)
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24
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Powers of Attorney
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25(3)
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Statement of Eligibility of Trustee
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(1) |
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Incorporated by reference to Exhibit 1 to
Archer-Daniels-Midland Companys Registration Statement on
Form S-3
(File
No. 333-137541)
(as filed with the Securities and Exchange Commission on
September 22, 2006). |
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(2) |
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Incorporated by reference to Exhibit 4 to
Archer-Daniels-Midland Companys Registration Statement on
Form S-3
(File
No. 333-137541)
(as filed with the Securities and Exchange Commission on
September 22, 2006). |
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(3) |
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Incorporated by reference to Exhibit 25 to
Archer-Daniels-Midland Companys Registration Statement on
Form S-3
(File
No. 333-137541)
(as filed with the Securities and Exchange Commission on
September 22, 2006). |