AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 17, 1996
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ABBOTT LABORATORIES
(Exact name of registrant as specified in its charter)
ILLINOIS 36-0698440
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
100 ABBOTT PARK ROAD
ABBOTT PARK, ILLINOIS 60064-3500
(847) 937-6100
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
JOSE M. DE LASA
SENIOR VICE PRESIDENT, SECRETARY AND GENERAL COUNSEL
ABBOTT LABORATORIES
100 ABBOTT PARK ROAD
ABBOTT PARK, ILLINOIS 60064-3500
(847) 937-6100
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
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COPIES TO:
ROBERT E. CURLEY CHARLES W. MULANEY, JR.
MAYER, BROWN & PLATT SKADDEN, ARPS, SLATE, MEAGHER & FLOM
190 SOUTH LASALLE STREET 333 WEST WACKER DRIVE
CHICAGO, ILLINOIS 60603 CHICAGO, ILLINOIS 60606
(312) 782-0600 (312) 407-0700
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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.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
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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. / /
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If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
CALCULATION OF REGISTRATION FEE
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PER UNIT (1) PRICE (1) FEE
Debt Securities........................ $650,000,000(2) 100% $650,000,000(2) $172,414(2)
(1) Estimated solely for the purpose of calculating the registration fee.
(2) Of the $650,000,000 of debt securities registered hereby, $150,000,000
aggregate principal amount of such securities was registered pursuant to
Registration Statement No. 33-50253 and are unissued as of the date hereof.
A registration fee of $46,875 was previously paid with respect to such
securities and is not included in the amount stated above.
Pursuant to Rule 429 under the Securities Act of 1933, as amended, the
Prospectus filed as part of this Registration Statement relates to the
securities registered hereby, including the remaining unsold $150,000,000
principal amount of debt securities previously registered by the Registrant
under its Registration Statement on Form S-3 (File No. 33-50253). Such
Registration Statement is amended to reflect the information contained herein.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED JUNE 17, 1996
P R O S P E C T U S
$650,000,000
ABBOTT LABORATORIES
DEBT SECURITIES
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Abbott Laboratories (the "Company") intends from time to time to issue its
unsecured debt securities (the "Securities") from which the Company will receive
up to an aggregate amount of $650,000,000 in proceeds (or its equivalent in
foreign currencies or currency units). The Securities will be offered for sale
in amounts, at prices and on terms to be determined when an agreement to sell is
made or at the time of sale, as the case may be. The Securities may be sold for
U.S. dollars, foreign denominated currency or European Currency Units ("ECUs"),
and principal of and any interest on the Securities may likewise be payable in
U.S. dollars, foreign denominated currency or ECUs. For each issue of Securities
in respect of which this Prospectus is being delivered (the "Offered
Securities"), there is an accompanying Prospectus Supplement (the "Prospectus
Supplement") that sets forth the title, designation, aggregate principal amount,
designated currency or currency units, rate (which may be fixed or variable) or
method of calculation of interest and dates for payment thereof, maturity,
priority, premium, if any, authorized denominations, initial price, any
redemption or prepayment rights at the option of the Company or the holder, any
terms for sinking fund payments, any listing on a securities exchange and the
initial public offering price, the form of the Securities (which may be in
registered or permanent global form) and other special terms of the Offered
Securities, together with the terms of the offering of the Offered Securities
and the net proceeds to the Company from the sale thereof.
The Securities may be offered directly to purchasers or to or through
agents, underwriters or dealers designated from time to time, or through a
combination of those methods of sale. If any underwriters or agents are involved
in the offering of the Offered Securities in respect of which this Prospectus is
being delivered, the names of such agents or underwriters and any applicable
fee, commission and discount arrangements with them will be set forth in the
Prospectus Supplement. See "Plan of Distribution." The net proceeds to the
Company from such offering will also be set forth in the Prospectus Supplement.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
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The date of this Prospectus is June , 1996.
NO PERSON IS AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN OR INCORPORATED BY REFERENCE IN
THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY OR ANY UNDERWRITER. NEITHER THIS PROSPECTUS NOR ANY PROSPECTUS
SUPPLEMENT CONSTITUTES AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY
SECURITIES OTHER THAN THE REGISTERED SECURITIES TO WHICH IT RELATES OR AN OFFER
TO SELL OR A SOLICITATION OF AN OFFER TO BUY SUCH SECURITIES TO ANY PERSON IN
ANY JURISDICTION TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION IN
SUCH JURISDICTION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE
HEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE ANY IMPLICATION THAT THERE HAS
BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THAT THE
INFORMATION CONTAINED OR INCORPORATED BY REFERENCE HEREIN IS CORRECT AS OF ANY
TIME SUBSEQUENT TO ITS DATE.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Company can be inspected and
copied at the office of the Commission at Room 1024, Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549, as well as at the Regional Offices of the
Commission at Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661-2511, and Seven World Trade Center, Suite 1300, New York, New
York 10048. Copies of such information can be obtained by mail from the Public
Reference Section of the Commission at Room 1024, Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549, at prescribed rates. Reports, proxy
statements and other information concerning the Company can also be inspected at
the office of the New York Stock Exchange, 20 Broad Street, New York, New York
10005, at the office of the Chicago Stock Exchange, 440 South LaSalle Street,
Chicago, Illinois 60605, and at the office of the Pacific Stock Exchange, 301
Pine Street, San Francisco, California 94104. The Company has securities listed
on each of the aforementioned exchanges.
This Prospectus constitutes a part of a registration statement (the
"Registration Statement") filed by the Company with the Commission under the
Securities Act of 1933, as amended (the "Securities Act"). This Prospectus omits
certain of the information contained in the Registration Statement, and
reference is hereby made to the Registration Statement and to the exhibits
thereto for further information with respect to the Company and the Securities.
The Company is not required, nor does it intend, to provide annual or other
reports to holders of the Securities. However, such reports will be available to
such holders upon request. See "Documents Incorporated by Reference."
DOCUMENTS INCORPORATED BY REFERENCE
The following documents filed by the Company under the Exchange Act with the
Commission are incorporated herein by reference:
(1) The Company's Annual Report on Form 10-K for the year ended December 31,
1995.
(2) The Company's Current Report on Form 8-K, dated March 29, 1996.
(3) The Company's Quarterly Report on Form 10-Q for the quarter ended March
31, 1996.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this Prospectus and prior to the
termination of the offering of the Securities offered hereby shall be deemed to
be incorporated in this Prospectus by reference and to be a part hereof from the
date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
The Company will provide without charge, upon the written or oral request by
any person, including any beneficial owner, to whom this Prospectus is
delivered, a copy of any or all of the documents incorporated by reference in
this Prospectus, other than exhibits to such documents (unless such exhibits are
specifically incorporated by reference into such documents). Such requests
should be directed to: Jose M. de Lasa, Senior Vice President, Secretary and
General Counsel, Abbott Laboratories, 100 Abbott Park Road, Abbott Park,
Illinois 60064-3500 (telephone (847) 937-6100).
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THE COMPANY
The Company is an Illinois corporation, incorporated in 1900. As used
throughout the text of this document, references to the "Company" include the
Company and its consolidated subsidiaries, unless otherwise indicated or unless
the context otherwise requires. The Company's corporate offices are located at
100 Abbott Park Road, Abbott Park, Illinois 60064-3500. Its telephone number is
(847) 937-6100.
The Company's principal business is the discovery, development, manufacture,
and sale of a broad and diversified line of health care products and services.
Among the Company's products is a line of adult and pediatric pharmaceuticals
and nutritionals. These products are sold primarily on the prescription or
recommendation of physicians or other health care professionals. This line also
includes agricultural and chemical products, bulk pharmaceuticals, and consumer
products. In addition, the Company produces a line of hospital and laboratory
products which includes diagnostic systems for blood banks, hospitals,
commercial laboratories, alternate-care testing sites, and consumers;
intravenous and irrigation fluids and related administration equipment,
including electronic drug delivery systems; drugs and drug delivery systems;
anesthetics; critical care products; and other medical specialty products for
hospitals and alternate-care sites.
The Company purchases, in the ordinary course of business, necessary raw
materials and supplies essential to the Company's operations from numerous
suppliers in the United States and overseas. The Company markets products in
approximately 130 countries through affiliates and distributors. Most of the
Company's products are sold both in and outside the United States. The Company
employs approximately 50,200 persons in its various offices, plants and
facilities located throughout North America, South America, Europe, Africa, Asia
and Australia.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges of the
Company (including its majority-owned subsidiaries, whether or not consolidated,
its proportionate share of any fifty-percent-owned persons, and any income
received (but not undistributed amounts) from less-than-fifty-percent-owned
persons) for the periods indicated:
YEAR ENDED DECEMBER 31,
THREE MONTHS ENDED -----------------------------------------------------
MARCH 31, 1996 1995 1994 1993 1992 1991
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25.5 21.9 24.1 21.3 18.0 16.0
For the purpose of calculating this ratio, (i) earnings have been calculated
by adjusting net earnings for taxes on earnings; interest expense; capitalized
interest cost, net of amortization; equity in earnings of less than
fifty-percent-owned persons, less dividends received; minority interest; and the
portion of rentals representative of the interest factor, (ii) the Company
considers one-third of rental expense to be the amount representing return on
capital, and (iii) fixed charges comprise total interest expense, including
capitalized interest and such portion of rentals. A statement setting forth the
computation of the ratios of earnings to fixed charges is filed as an exhibit to
the Registration Statement of which this Prospectus is a part.
USE OF PROCEEDS
Except as otherwise set forth in the Prospectus Supplement relating to the
Offered Securities, the net proceeds to be received by the Company from the sale
of the Securities will be added to the general funds of the Company and will be
used for general corporate purposes, including repayment of indebtedness,
retirement of long-term and short-term debt and the purchase of shares of the
Company's common stock. Pending such use, the net proceeds will be temporarily
invested in short-term instruments.
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DESCRIPTION OF SECURITIES
The Securities are to be issued under an Indenture (the "Indenture"),
between the Company and Harris Trust and Savings Bank, as Trustee (the
"Trustee"), a copy of which is filed as an exhibit to the Registration
Statement. The following summaries of certain provisions of the Indenture do not
purport to be complete and are subject to, and are qualified in their entirety
by reference to, all the provisions of the Indenture, including the definitions
therein of certain terms. Wherever particular Sections or defined terms of the
Indenture are referred to, such Sections or defined terms are incorporated
herein by reference.
The following sets forth certain general terms and provisions of the
Securities offered hereby. The particular terms of the Securities offered by any
Prospectus Supplement (the "Offered Securities") will be described in the
Prospectus Supplement relating to such Offered Securities (the "Applicable
Prospectus Supplement").
GENERAL
The Indenture does not limit the amount of Securities that may be issued
thereunder and Securities may be issued thereunder from time to time in one or
more series. The Securities will be unsecured and unsubordinated obligations of
the Company and will rank equally and ratably with other unsecured and
unsubordinated obligations of the Company.
Unless otherwise indicated in the Applicable Prospectus Supplement,
principal of, premium, if any, and interest on the Securities will be payable,
and the transfer of Securities will be registrable, at the office or agency to
be maintained by the Company in Chicago and at any other office or agency
maintained by the Company for such purpose. The Securities will be issued only
in fully registered form without coupons and, unless otherwise indicated in the
Applicable Prospectus Supplement, in denominations of $1,000 or integral
multiples thereof. No service charge will be made for any registration of
transfer or exchange of the Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge imposed in
connection therewith.
The Applicable Prospectus Supplement will describe the following terms of
the Offered Securities: (1) the title of the Offered Securities; (2) any limit
on the aggregate principal amount of the Offered Securities; (3) the Person to
whom any interest on the Offered Securities shall be payable, if other than the
person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest; (4) the date or dates on which the principal of the Offered Securities
is payable; (5) the rate or rates (which may be fixed or variable) at which the
Offered Securities shall bear interest or the method by which such rate or rates
shall be determined, if any, the date or dates from which any such interest
shall accrue, the Interest Payment Dates on which any such interest shall be
payable and the Regular Record Date for the interest payable on any Interest
Payment Date; (6) the place or places where the principal of and any premium and
interest on the Offered Securities shall be payable; (7) the period or periods
within which, the price or prices at which and the terms and conditions upon
which the Offered Securities may be redeemed, in whole or in part, at the option
of the Company; (8) the obligation, if any, of the Company to redeem, purchase
or repay the Offered Securities pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods within
which, the price or prices at which and the terms and conditions upon which the
Offered Securities shall be redeemed, purchased or repaid, in whole or in part,
pursuant to such obligation; (9) if other than denominations of $100,000 and any
integral multiple of $1,000 in excess thereof, the denominations in which the
Offered Securities shall be issuable; (10) the currency, currencies or currency
units in which payment of the principal of and any premium and interest on any
Offered Securities shall be payable if other than the currency of the United
States of America; (11) if the amount of payments of principal of or any premium
or interest on any Offered Securities may be determined with reference to an
index or formula, the manner in which such amounts shall be determined; (12) if
the principal of or any premium or interest on any Offered Securities is to be
payable, at the election of the Company or a Holder thereof, in one or more
currencies or currency units other than that or those in which the Offered
Securities are stated to be payable, the currency, currencies or currency units
in which payment of the principal of and any premium and interest
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on the Offered Securities as to which such election is made shall be payable,
and the periods within which and the terms and conditions upon which such
election is to be made; (13) if other than the principal amount thereof, the
portion of the principal amount of the Offered Securities which shall be payable
upon declaration of acceleration of the Maturity thereof; (14) the applicability
of the provisions described under "Defeasance and Covenant Defeasance"; (15) if
the Offered Securities will be issued in whole or in part in the form of a
Book-Entry Security as described under "Book-Entry Securities," the depository
appointed by the Company (the "Depository") or its nominee with respect to the
Offered Securities and the circumstances under which the Book-Entry Security may
be registered for transfer or exchange or authenticated and delivered in the
name of a Person other than the Depository or its nominee; and (16) any other
terms of the Offered Securities.
The Securities may be issued as Original Issue Discount Securities to be
offered and sold at a substantial discount below their stated principal amount.
Federal income tax consequences and other special considerations applicable to
Original Issue Discount Securities and any Securities treated as having been
issued with original issue discount for Federal income tax purposes will be
described in the Applicable Prospectus Supplement. "Original Issue Discount
Securities" means any Security which provides for an amount less than the
principal amount thereof to be due and payable upon the declaration of
acceleration of the Maturity thereof upon the occurrence of an Event of Default
and the continuation thereof.
The Indenture does not contain covenants or other provisions designed to
afford holders of the Securities protection in the event of a highly leveraged
transaction, change in credit rating or other similar occurrence.
BOOK-ENTRY SECURITIES
Unless otherwise provided in the Prospectus Supplement, the Securities will
be represented by one or more certificates (the "Global Securities"). The Global
Security representing Securities will be deposited with, or on behalf of, The
Depository Trust Company ("DTC"), or other successor depository appointed by the
Company (DTC or such other depository is herein referred to as the "Depository")
and registered in the name of the Depository or its nominee. Unless otherwise
provided in the Prospectus Supplement, Securities will not be issued in
definitive form. DTC currently limits the maximum denomination of any single
Global Security to $200,000,000.
DTC is a limited-purpose trust company organized under the laws of the State
of New York, a member of the Federal Reserve System, a "clearing corporation"
within the meaning of the New York Uniform Commercial Code and a "clearing
agency" registered pursuant to the provisions of Section 17A of the Securities
Exchange Act of 1934. DTC was created to hold securities of its participants and
to facilitate the settlement of securities transactions among its participants
in such securities through electronic computerized book-entry changes in
accounts of the participants, thereby eliminating the need for physical movement
of securities certificates. DTC's participants include securities brokers and
dealers, banks, trust companies, clearing corporations and certain other
organizations. DTC is owned by a number of its participants and by the New York
Stock Exchange, Inc., the American Stock Exchange, Inc., and the National
Association of Securities Dealers, Inc. Access to DTC's book-entry system is
also available to others, such as banks, brokers, dealers and trust companies,
that clear through or maintain a custodial relationship with a participant,
either directly or indirectly. The rules applicable to DTC and its participants
are on file with the Commission.
Upon the issuance by the Company of Securities represented by a Global
Security, DTC will credit, on its book-entry registration and transfer system,
the respective principal amounts of the Securities represented by such Global
Security to the accounts of participants. The accounts to be credited shall be
designated by the underwriters, dealers or agents. Ownership of beneficial
interests in the Global Security will be limited to participants or persons that
hold interests through participants. Ownership of beneficial interests in
Securities represented by the Global Security will be shown on, and the transfer
of that ownership will be effected only through, records maintained by DTC (with
respect to interests of
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participants in DTC), or by participants in DTC or persons that may hold
interests through such participants (with respect to persons other than
participants in DTC). The laws of some states require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
limits and such laws may impair the ability to transfer beneficial interests in
the Global Security.
So long as the Depository for the Global Security, or its nominee, is the
registered owner of the Global Security, the Depositor or its nominee, as the
case may be, will be considered the sole owner or holder of the Securities
represented by such Global Security for all purposes under the applicable
Indenture. Except as provided below, owners of beneficial interests in
Securities represented by the Global Security will not be entitled to have
Securities represented by such Global Security registered in their names, will
not receive or be entitled to receive physical delivery of Securities in
definitive form and will not be considered the owners or holders thereof under
the applicable Indenture.
Payments of principal of, premium, if any, and interest on the Securities
represented by the Global Security registered in the name of DTC or its nominee
will be made by the Company through the Trustee under the applicable Indenture
or a paying agent (the "Paying Agent"), which may also be the Trustee under the
applicable Indenture to DTC or its nominee, as the case may be, as the
registered owner of the Global Security. Neither the Company, the Trustee, nor
the Paying Agent will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of the Global Security or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
The Company has been advised that DTC, upon receipt of any payment of
principal of, premium, if any, or interest in respect of a Global Security, will
credit immediately the accounts of the related participants with payment in
amounts proportionate to their respective holdings in principal amount of
beneficial interests in such Global Security as shown on the records of DTC. The
Company expects that payments by participants to owners of beneficial interests
in a Global Security will be governed by standing customer instructions and
customary practices, as is now the case with securities held for the accounts of
customers in bearer form or registered in "street name," and will be the
responsibility of such participants.
If the Depository with respect to a Global Security is at any time unwilling
or unable to continue as Depository and a successor Depository is not appointed
by the Company within 90 days, the Company will issue certificated notes in
exchange for the Securities represented by such Global Security.
The information in this section concerning the Depository and the
Depository's book-entry system has been obtained from sources that the Company
believes to be reliable, but the Company takes no responsibility for the
accuracy thereof.
CERTAIN COVENANTS OF THE COMPANY
RESTRICTIONS ON SECURED DEBT. Unless otherwise provided in the Prospectus
Supplement with respect to any series of the Securities, if the Company or any
Domestic Subsidiary (as defined below) shall incur, issue, assume or guarantee
any indebtedness for borrowed money represented by notes, bonds, debentures or
other similar evidences of indebtedness, secured by a mortgage, pledge or other
lien on any Principal Domestic Property (as defined below) or on any shares of
stock or debt of any Domestic Subsidiary, the Company shall secure, or cause
such Domestic Subsidiary to secure, the Securities equally and ratably, with (or
prior to) such indebtedness, so long as such indebtedness shall be so secured,
unless after giving effect thereto the aggregate amount of all such indebtedness
so secured, together with all Attributable Debt (as defined below) in respect of
sale and leaseback transactions involving Principal Domestic Properties, would
not exceed 15% of the Consolidated Net Assets (as defined below) of the Company.
This restriction will not apply to, and there shall be excluded in computing
secured indebtedness for the purpose of such restriction, indebtedness secured
by (a) mortgages on property of, or on any shares of stock or debt of, any
corporation existing at the time such corporation becomes a Domestic Subsidiary,
(b) mortgages in favor of the Company or any Domestic Subsidiary, (c) mortgages
in favor of U.S. or foreign governmental bodies to secure partial, progress,
advance or other payments, (d) mortgages on property, shares of stock or debt
existing at the
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time of acquisition thereof (including acquisition through merger or
consolidation), purchase money mortgages and construction cost mortgages
existing at or incurred within 120 days of the time of acquisition thereof, (e)
mortgages existing on the first date on which a Security is authenticated by the
Trustee, (f) mortgages incurred in connection with pollution control, industrial
revenue or similar financings, and (g) any extension, renewal or replacement of
any debt secured by any mortgage referred to in the foregoing clauses (a)
through (f), inclusive.
The term "Subsidiary" of the Company means any corporation of which the
Company directly or indirectly owns or controls stock which under ordinary
circumstances (not dependent upon the happening of a contingency) has the voting
power to elect a majority of the board of directors of such corporation;
provided that the term does not include any corporation that does not own a
Principal Domestic Property and the principal executive officer, president and
principal financial officer of the Company determine in good faith that the then
aggregate investments by the Company and its Domestic Subsidiaries in such
corporation are not of material importance to the total business conducted, or
assets owned, by the Company and its Domestic Subsidiaries. The term "Domestic
Subsidiary" means a Subsidiary of the Company which transacts substantially all
of its business or maintains substantially all of its property within the United
States (excluding its territories, possessions and Puerto Rico), except a
Subsidiary which (a) is engaged primarily in financing operations outside of the
United States or in leasing personal property or financing inventory,
receivables or other property or (b) does not own a Principal Domestic Property.
The term "Principal Domestic Property" means any building, structure or other
facility (together with the land on which it is erected and fixtures comprising
a part thereof) used primarily for manufacturing, processing, research,
warehousing or distribution, located in the United States (excluding its
territories, possessions and Puerto Rico), owned or leased by the Company or a
Subsidiary of the Company and having a net book value in excess of 2% of
Consolidated Net Assets, other than any such building, structure or other
facility or portion thereof which is a pollution control facility financed by
state or local governmental obligations or which the principal executive
officer, president and principal financial officer of the Company determine in
good faith is not of material importance to the total business conducted or
assets owned by the Company and its Subsidiaries as an entirety. The term
"Consolidated Net Assets" means the aggregate amount of assets (less reserves
and other deductible items) after deducting current liabilities, as shown on the
consolidated balance sheet of the Company and its Subsidiaries contained in the
latest annual report to the stockholders of the Company and prepared in
accordance with generally accepted accounting principles. The term "Attributable
Debt" means the present value (discounted at the rate of 8% per annum compounded
monthly) of the obligations for rental payments required to be paid during the
remaining term of any lease of more than 12 months.
RESTRICTIONS ON SALES AND LEASEBACKS. Unless otherwise provided in the
Prospectus Supplement with respect to any series of the Securities, neither the
Company nor any Domestic Subsidiary may enter into any sale and leaseback
transaction involving any Principal Domestic Property, the acquisition or
completion of construction and commencement of full operation of which has
occurred more than 120 days prior thereto, unless (a) the Company or such
Domestic Subsidiary could incur a mortgage on such property under the
restrictions described above under "Restrictions on Secured Debt" in an amount
equal to the Attributable Debt with respect to the sale and leaseback
transaction without equally and ratably securing the Securities or (b) the
Company, within 120 days after the sale or transfer by the Company or any
Domestic Subsidiary, applies to the retirement of its funded debt (defined as
indebtedness for borrowed money having a maturity of, or by its terms extendible
or renewable for, a period of more than 12 months after the date of
determination of the amount thereof) an amount equal to the greater of (i) the
net proceeds of the sale of the Principal Domestic Property sold and leased
pursuant to such arrangement or (ii) the fair market value of the Principal
Domestic Property so sold and leased (subject to credits for certain voluntary
retirements of funded debt).
EVENTS OF DEFAULT
Any one of the following events will constitute an Event of Default under
the Indenture with respect to Securities of any series: (a) failure to pay any
interest on any Security of that series when due, continued for 30 days; (b)
failure to pay principal of or any premium on any Security of that series when
due;
7
(c) failure to deposit any sinking fund payment, when due, in respect of any
Security of that series; (d) failure to perform, or breach of, any other
covenant or warranty of the Company in the Indenture (other than a covenant
included in the Indenture solely for the benefit of a series of Securities
thereunder other than that series) continued for 90 days after written notice as
provided in the Indenture; (e) certain events in bankruptcy, insolvency or
reorganization of the Company; or (f) any other Event of Default provided with
respect to Securities of that series.
If any Event of Default with respect to the Securities of any series at the
time Outstanding occurs and is continuing, either the Trustee or the Holders of
at least 25 percent in aggregate principal amount of the Outstanding Securities
of that series may declare the principal amount (or, if the Securities of that
series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms thereof) of all the Securities of that
series to be due and payable immediately by a notice in writing to the Company
(and to the Trustee if given by Holders), and upon any such declaration such
principal amount (or specified amount) will be immediately due and payable. At
any time after a declaration of acceleration with respect to Securities of any
series has been made, but before a judgment or decree based on acceleration has
been obtained, the Holders of a majority in aggregate principal amount of
Outstanding Securities of that series may, under certain circumstances, rescind
and annul such acceleration.
Reference is made to the Applicable Prospectus Supplement relating to any
series of Offered Securities that are Original Issue Discount Securities for the
particular provisions relating to acceleration of the Stated Maturity of a
portion of the principal amount of such series of Original Issue Discount
Securities upon the occurrence of an Event of Default and the continuation
thereof.
The Indenture provides that, subject to the duty of the Trustee during
default to act with the required standard of care, the Trustee will be under no
obligation to exercise any of its rights or powers under the Indenture at the
request or direction of any of the Holders, unless such Holders shall have
offered to the Trustee reasonable indemnity. Subject to such provisions for the
indemnification of the Trustee and to certain other conditions, the Holders of a
majority in aggregate principal amount of the Outstanding Securities of any
series will have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred on the Trustee, with respect to the Securities of that
series.
No Holder of any series of Securities will have any right to institute any
proceeding with respect to the Indenture, or for the appointment of a receiver
or trustee, or for any other remedy thereunder, unless such Holder shall have
previously given to the Trustee written notice of a continuing Event of Default
and unless the Holders of at least 25 percent in principal amount of the
Outstanding Securities of that series shall have made written request, and
offered reasonable indemnity, to the Trustee to institute such proceeding as
trustee, and the Trustee shall not have received from the Holders of a majority
in aggregate principal amount of the Outstanding Securities of that series a
direction inconsistent with such request and shall have failed to institute such
proceeding within 60 days. However, such limitations do not apply to a suit
instituted by a Holder of a Security for enforcement of payment of the principal
of and premium, if any, or interest on such Security on or after the respective
due dates expressed in such Security.
The Company is required to furnish to the Trustee annually a statement as to
the performance by the Company of certain of its obligations under the Indenture
and as to any default in such performance.
MODIFICATION AND WAIVER
Modifications and amendments of the Indenture may be made by the Company and
the Trustee with the consent of the Holders of not less than the majority in
aggregate principal amount of the Outstanding Securities of each series issued
under the Indenture and affected by the modification or amendment; provided,
however, that no such modification or amendment may, without the consent of the
Holders of all Securities affected thereby, (i) change the Stated Maturity of
the principal of, or any installment of principal of or interest on, any
Security; (ii) reduce the principal amount of, or the premium, if any, or
(except as otherwise provided in the Applicable Prospectus Supplement) interest
on, any
8
Security (including in the case of an Original Issue Discount Security the
amount payable upon acceleration of the maturity thereof); (iii) change the
place or currency of payment of principal of, premium, if any, or interest on
any Security; (iv) impair the right to institute suit for the enforcement of any
payment on any Security on or at the Stated Maturity thereof (or in the case of
redemption, on or after the Redemption Date); (v) reduce the percentage in
principal amount of Outstanding Securities of any series, the consent of whose
Holders is required for modification or amendment of the Indenture or for waiver
of compliance with certain provisions of the Indenture or for waiver of certain
defaults; or (vi) modify certain provisions of the Indenture, except to increase
any such percentage or to provide that certain other provisions of the Indenture
cannot be modified or waived without the consent of each Holder affected
thereby.
The Holders of at least a majority in aggregate principal amount of the
Outstanding Securities of any series may, on behalf of all Holders of that
series, waive compliance by the Company with certain restrictive provisions of
the Indenture. The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities of any series may, on behalf of all Holders
of that series, waive any past default under the Indenture, except a default in
the payment of principal, premium or interest and in respect of a covenant or
provision of the Indenture that cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such series affected
thereby.
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company may not consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets substantially as an entirety
to any Person and may not permit any Person to merge into or consolidate with
the Company or convey, transfer or lease its properties and assets substantially
as an entirety to the Company, unless (i) in case the Company consolidates with
or merges into another person or conveys, transfers or leases its properties
substantially as an entirety to any person, the person formed by such
consolidation or into which the Company is merged or the person which acquires
by conveyance or transfer, or which leases, the properties and assets of the
Company substantially as an entirety is a corporation, partnership, or trust
organized under the laws of the United States of America, any State or the
District of Columbia, and expressly assumes the Company's obligations on the
Securities under a supplemental indenture, (ii) immediately after giving effect
to the transaction no Event of Default, and no event which, after notice or
lapse of time or both, would become an Event of Default, shall have occurred and
be continuing, (iii) if properties or assets of the Company become subject to a
mortgage, pledge, lien, security interest or other encumbrance not permitted by
the Indenture, the Company or such successor Person, as the case may be, takes
such steps as shall be necessary effectively to secure the Securities equally
and ratably with (or prior to) all indebtedness secured thereby, and (iv) the
Company has delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel stating compliance with these provisions.
DEFEASANCE AND COVENANT DEFEASANCE
The Indenture provides, unless otherwise indicated in the Applicable
Prospectus Supplement with respect to the Offered Securities, that the Company,
at the Company's option, (a) will be discharged from any and all obligations in
respect of the Securities of any series (except for certain obligations to
register the transfer of or exchange of Securities of such series, replace
stolen, lost or mutilated Securities of such series, maintain paying agencies
and hold moneys for payment in trust) or (b) need not comply with certain
restrictive covenants of the Indenture, including those described under "Certain
Covenants of the Company," and the occurrence of an event described in clause
(d) under "Events of Default" shall no longer be an Event of Default, in each
case, if the Company deposits, in trust, with the Trustee money or U.S.
Government Obligations, which through the payment of interest thereon and
principal thereof in accordance with their terms will provide money, in an
amount sufficient to pay all the principal of and premium, if any, and interest
on the Securities of such series on the dates such payments are due (which may
include one or more redemption dates designated by the Company) in accordance
with the terms of the Securities of such series. Such a trust may be established
only if, among other things, (i) no Event of Default or event which with the
giving of notice or lapse of time, or both, would become an Event of Default
under the Indenture shall have occurred and be continuing on the date of such
deposit or insofar as an Event of Default resulting from certain events of
bankruptcy or insolvency of the Company, at any time during the period ending on
the 121st day after the date of such
9
deposit or, if longer, ending on the day following the expiration of the longest
preference period applicable to the Company in respect of such deposit, (ii)
such deposit will not cause the Trustee to have any conflicting interest with
respect to other securities of the Company or result in the trust arising from
such deposit to constitute, unless it is qualified as, a "regulated investment
company," (iii) such defeasance will not result in a breach or violation of, or
constitute a default under, the Indenture or any other agreement or instrument
to which the Company is a party or by which it is bound, and (iv) the Company
shall have delivered an Opinion of Counsel to the effect that the Holders will
not recognize income, gain or loss for Federal income tax purposes as a result
of such deposit or defeasance and will be subject to Federal income tax in the
same manner as if such defeasance had not occurred, which Opinion of Counsel, in
the case of clause (a) above, must refer to and be based upon a published ruling
of the Internal Revenue Service, a private ruling of the Internal Revenue
Service addressed to the Company, or otherwise a change in applicable Federal
income tax law occurring after the date of the Indenture. In the event the
Company omits to comply with its remaining obligations under the Indenture after
a defeasance of the Indenture with respect to the Securities of any series as
described under clause (b) above and the Securities of such series are declared
due and payable because of the occurrence of any Event of Default, the amount of
money and U.S. Government Obligations on deposit with the Trustee may be
insufficient to pay amounts due on the Securities of such series at the time of
the acceleration resulting from such Event of Default. However, the Company will
remain liable in respect of such payments.
CONCERNING THE TRUSTEE
Harris Trust and Savings Bank is Trustee under the Indenture. The Trustee
performs services for the Company in the ordinary course of business.
PLAN OF DISTRIBUTION
The Company may sell the Securities being offered hereby through agents,
through underwriters and through dealers, and Securities may be sold to other
purchasers directly or through agents or through a combination of any such
methods of sale.
The distribution of the Securities may be effected from time to time in one
or more transactions at a fixed price or prices, which may be changed, or at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
Offers to purchase Securities may be solicited by agents designated by the
Company from time to time. Any such agent, who may be deemed to be an
underwriter, as that term is defined in the Securities Act, involved in the
offer or sale of the Securities in respect of which this Prospectus is delivered
will be named, and any commissions payable by the Company to such agent set
forth, in the Applicable Prospectus Supplement. Agents may be entitled under
agreements that may be entered into with the Company to indemnification by the
Company against certain liabilities, including liabilities under the Securities
Act, and such agents or their affiliates may be customers of, extend credit to
or engage in transactions with or perform services for the Company in the
ordinary course of business. Unless otherwise indicated in the Prospectus
Supplement, any such agent will be acting on a reasonable efforts basis for the
period of its appointment.
If any underwriters are utilized in the sale, the Company will enter into an
underwriting agreement with such underwriters at the time of sale to them and
the names of the underwriters and the terms of the transaction will be set forth
in the Applicable Prospectus Supplement that will be used by the underwriters to
make resales of the Securities in respect of which this Prospectus is delivered
to the public. The underwriters may be entitled under the relevant underwriting
agreement to indemnification by the Company against certain liabilities,
including liabilities under the Securities Act, and such underwriters or their
affiliates may be customers of, extend credit to or engage in transactions with
or perform services for the Company in the ordinary course of business.
If dealers are utilized in the sale of the Securities in respect of which
this Prospectus is delivered, the Company will sell such Securities to such
dealers, as principal. The dealers may then resell such
10
Securities to the public at varying prices to be determined by such dealers at
the time of resale. Dealers may be entitled to indemnification by the Company
against certain liabilities, including liabilities under the Securities Act, and
such dealers or their affiliates may be customers of, extend credit to or engage
in transactions with or perform services for the Company in the ordinary course
of business.
The Securities are not proposed to be listed on a securities exchange, and
any underwriters or dealers will not be obligated to make a market in
Securities. The Company cannot predict the activity or liquidity of any trading
in the Securities.
LEGAL OPINIONS
Unless otherwise indicated in a supplement to this Prospectus, certain legal
matters in connection with the Securities offered hereby will be passed upon for
the Company by Jose M. de Lasa, Esq., Senior Vice President, General Counsel and
Secretary of the Company and by Mayer, Brown & Platt, Chicago, Illinois, and for
the underwriters, dealers and agents, if any, by Skadden, Arps, Slate, Meagher &
Flom, Chicago, Illinois. As of May 28, 1996, Mr. de Lasa beneficially owned
approximately 20,044 shares of common stock of the Company and held options to
acquire 130,002 shares of such common stock of which options to purchase 26,668
shares of common stock are currently exercisable. (These amounts include
approximately 44 shares held for the benefit of Mr. de Lasa in the Abbott
Laboratories Stock Retirement Trust pursuant to the Abbott Laboratories Stock
Retirement Plan). The opinions of Mr. de Lasa, Mayer, Brown & Platt and Skadden,
Arps, Slate, Meagher & Flom may be conditioned upon, and may be subject to
certain assumptions regarding, future action required to be taken by the Company
and any underwriter(s), dealer(s) or agent(s) in connection with the issuance
and sale of any particular series of Offered Securities. The opinions of Mr. de
Lasa, Mayer, Brown & Platt and Skadden, Arps, Slate, Meagher & Flom with respect
to certain series of Offered Securities may be subject to other conditions and
assumptions, as indicated in the Prospectus Supplement describing such series.
Skadden, Arps, Slate, Meagher & Flom from time to time represents the Company in
connection with certain other matters.
EXPERTS
The consolidated financial statements and schedules included in the Annual
Report on Form 10-K for the year ended December 31, 1995, incorporated by
reference in this Registration Statement, have been audited by Arthur Andersen
LLP, independent public accountants, as indicated in their reports with respect
thereto, and are included herein in reliance upon the authority of said firm as
experts in giving said reports.
11
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated expenses in connection with the
issuance and distribution of the securities registered hereby, other than
underwriting discounts and commissions:
SEC registration fee............................................... $ 172,414
Blue sky fees and expenses......................................... 10,000
Printing and engraving costs....................................... 20,000
Legal fees and expenses............................................ 35,000
Accounting fees and expenses....................................... 35,000
Trustee fees and expenses.......................................... 10,000
Rating agency fees................................................. 90,000
Miscellaneous...................................................... 12,586
---------
Total............................................................ $ 385,000
---------
---------
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
Restated Article R-VI of the Company's Restated Articles of Incorporation
provides that the Company shall, in the case of persons who are or were
directors or officers of the Company, and may, as to other persons, indemnify to
the fullest extent permitted by law any person who was or is a party, or is
threatened to be made a party, to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he is or was a director, officer, employee or agent of
the Company, or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise. The provisions of Article R-VI are applicable to all
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred in connection with such action, suit
or proceeding. Expenses incurred in defending a civil or criminal action, suit
or proceeding may be paid by the Company in advance of the final disposition of
such action, suit or proceeding, as authorized by the Company's Board of
Directors in the specific case, upon receipt of an undertaking by or on behalf
of the director, officer, employee or agent to repay such amount, unless it
shall ultimately be determined that he or she is entitled to indemnification.
Section 8.75 of the Illinois Business Corporation Act provides that a
corporation may indemnify any person (or his or her personal representatives)
who, by reason of the fact that such person is or was a director or officer of
such corporation, is made (or threatened to be made) a party to any pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, other than one brought on behalf of the corporation, against
reasonable expenses (including attorneys' fees), judgments, fines and settlement
payments, if such person acted in good faith and in a manner he or she
reasonably believed to be not opposed to the best interests of such corporation
and, in criminal actions, in addition, had no reasonable cause to believe his or
her conduct was unlawful. In the case of actions on behalf of the corporation,
indemnification may extend only to reasonable expenses (including attorneys'
fees) and only if such person acted in good faith and in a manner he or she
reasonably believed to be not opposed to the best interests of the corporation,
provided that no such indemnification is permitted in respect of any claim,
issue or matter as to which such person is adjudged to be liable for negligence
or misconduct in the performance of his or her duty to the corporation except to
the extent that the adjudicating court otherwise provides. To the extent that
such person has been successful in defending any action, suit or proceeding
(even one on behalf of the corporation) or in defense of any claim, issue or
matter therein, such person is entitled to indemnification for reasonable
expenses (including attorneys' fees) incurred by such person in connection
therewith.
The indemnification provided for by the Illinois Business Corporation Act is
not exclusive of any other rights of indemnification, and a corporation may
maintain insurance against liabilities for which
II-1
indemnification is not expressly provided by the Illinois Business Corporation
Act. The Company's directors and officers are insured under a directors and
officers liability insurance policy maintained by the Company.
The proposed form of Underwriting Agreement filed as Exhibit 1.1 to this
Registration Statement provides for indemnification of the Company's directors
and officers who signed the Registration Statement, and of each person, if any,
who controls the Company, against certain liabilities, including liabilities
under the Securities Act of 1933, as amended (the "Securities Act").
ITEM 16. EXHIBITS.
A list of exhibits filed herewith or incorporated by reference is contained
in the Exhibit Index which is incorporated herein by reference.
ITEM 17. UNDERTAKINGS.
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 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement; and
(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 (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished
to the Commission by the registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Securities Act
of 1933, each filing of the registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's 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.
II-2
(5) That, for purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(6) That, for the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of prospectus
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.
(7) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant, pursuant to the provisions referred to in Item 15, 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 Securities Act of 1933 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
Securities Act of 1933 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 County of Lake, State of Illinois, on June 17, 1996.
ABBOTT LABORATORIES
By: /s/ D. L. BURNHAM
--------------------------------------
D. L. Burnham
Chairman of the Board and
Chief Executive Officer
Each person whose signature appears below on this Registration Statement
hereby constitutes and appoints Jose M. de Lasa and Gary P. Coughlan and each of
them, with full power to act without the other, as his or her true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him or her and in his or her name, place and stead, in any and all
capacities (unless revoked in writing), to sign any and all amendments to the
Registrant's Form S-3 Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting to such attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he or she might and could do in person,
hereby ratifying and confirming all that such attorneys-in-fact and agents or
any of them, or their or his substitute or substitutes, may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on June 17, 1996.
/s/ D. L. BURNHAM /s/ K. FRANK AUSTEN, M.D.
- ---------------------------------------- ----------------------------------------
D. L. Burnham K. Frank Austen, M.D.
Chairman of the Board, Director
Chief Executive Officer and Director
/s/ THOMAS R. HODGSON /s/ H. LAURANCE FULLER
- ---------------------------------------- ----------------------------------------
Thomas R. Hodgson H. Laurance Fuller
President, Chief Operating Officer Director
and Director
/s/ GARY P. COUGHLAN /s/ ALLEN F. JACOBSON
- ---------------------------------------- ----------------------------------------
Gary P. Coughlan Allen F. Jacobson
Senior Vice President, Finance and Director
Chief Financial Officer
/s/ THEODORE A. OLSON /s/ DAVID A. JONES
- ---------------------------------------- ----------------------------------------
Theodore A. Olson David A. Jones
Vice President and Controller Director
II-4
/s/ DAVID A. L. OWEN /s/ WILLIAM D. SMITHBURG
- ---------------------------------------- ----------------------------------------
David A. L. Owen William D. Smithburg
Director Director
/s/ BOONE POWELL, JR. /s/ JOHN R. WALTER
- ---------------------------------------- ----------------------------------------
Boone Powell, Jr. John R. Walter
Director Director
/s/ A. BARRY RAND /s/ WILLIAM L. WEISS
- ---------------------------------------- ----------------------------------------
A. Barry Rand William L. Weiss
Director Director
/s/ W. ANN REYNOLDS, PH.D.
- ----------------------------------------
W. Ann Reynolds, Ph.D.
Director
II-5
EXHIBIT INDEX
EXHIBIT SEQUENTIAL PAGE
NUMBER DESCRIPTION NUMBER
- ----------- ------------------------------------------------------------------------------------- -----------------
1.1 Form of Underwriting Agreement.......................................................
4.1 Indenture, dated as of October 1, 1993, between the Company and Harris Trust and
Savings Bank (including form of Security) (incorporated by reference to Exhibit 4.1
to the Registrant's Quarterly Report on Form 10-Q for the Quarter ended September
30, 1993)
5.1 Opinion of Jose M. de Lasa...........................................................
23.1 Consent of Arthur Andersen LLP.......................................................
23.2 Consent of Jose M. de Lasa (included in the opinion filed as Exhibit 5.1 to this
Registration Statement)
24.1 Power of Attorney (included on signature page of this Registration Statement)
25.1 Statement of Eligibility of Harris Trust and Savings Bank on Form T-1................
II-6
ABBOTT LABORATORIES
Debt Securities
--------------
UNDERWRITING AGREEMENT
-----------------------
, 1996
---------
TO THE REPRESENTATIVES OF THE
SEVERAL UNDERWRITERS NAMED IN THE
RESPECTIVE PRICING AGREEMENTS
HEREINAFTER DESCRIBED.
Ladies and Gentlemen:
From time to time Abbott Laboratories, an Illinois corporation
(the "Company"), proposes to enter into one or more Pricing Agreements
(each a "Pricing Agreement") in the form of Annex I hereto, with such
additions and deletions as the parties thereto may determine, and, subject
to the terms and conditions stated herein and therein, to issue and sell to
the firms named in Schedule I to the applicable Pricing Agreement (such
firms constituting the "Underwriters" with respect to such Pricing
Agreement and the securities specified therein) certain of its debt
securities (the "Securities") specified in Schedule II to such Pricing
Agreement (with respect to such Pricing Agreement, the "Designated
Securities").
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto
and in or pursuant to the indenture (the "Indenture") identified in such
Pricing Agreement.
1. Particular sales of Designated Securities may be made from
time to time to the Underwriters of such Securities, for whom the firms
designated as representatives of the Underwriters of such Securities in the
Pricing Agreement relating thereto will act as representatives (the
"Representatives"). The term "Representatives" also refers to a single
firm acting as sole representative of the Underwriters and to an
Underwriter or Underwriters who act without any firm being designated as
its or their representative. This Underwriting Agreement shall not be
construed as an obligation of the Company to sell any of the Securities or
as an obligation of any of the Underwriters to purchase the Securities.
The obligation of the Company to issue and sell any of the Securities and
the obligation of any of the Underwriters to purchase any of the Securities
shall be evidenced by the Pricing Agreement with respect to the Designated
Securities specified therein. Each Pricing Agreement shall specify the
aggregate principal amount of such Designated Securities, the initial
public offering price of such Designated Securities, the purchase price to
the Underwriters of such Designated Securities, the names of the
Underwriters of such Designated Securities, the names of the
Representatives of such Underwriters and the principal amount of such
Designated Securities to be purchased by each Underwriter and shall set
forth the date, time and manner of delivery of such Designated Securities
and payment therefor. The Pricing Agreement shall also specify (to the
extent not set forth in the Indenture and the registration statement and
prospectus with respect thereto) the terms of such Designated Securities.
A Pricing Agreement shall be in the form of an executed writing (which may
be in counterparts), and may be evidenced by an exchange of telegraphic
communications or any other rapid transmission device designed to produce a
written record of communications transmitted. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall be
several and not joint.
2
2. The Company represents and warrants to, and agrees with, each
of the Underwriters that:
(a) A registration statement on Form S-3 (File No.
333-____) (the "Initial Registration Statement") in respect of the
Securities has been filed with the Securities and Exchange Commission
(the "Commission"); the Initial Registration Statement and any
post-effective amendment thereto, each in the form heretofore delivered
or to be delivered to the Representatives and, excluding exhibits to
such registration statement, but including all documents incorporated
by reference in the prospectus contained therein, to the
Representatives for each of the other Underwriters, have been declared
effective by the Commission in such form; other than a registration
statement, if any, increasing the size of the offering (a "Rule 462(b)
Registration Statement"), filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended (the "Act"), which became effective
upon filing, no other document with respect to the Initial Registration
Statement or document incorporated by reference therein has heretofore
been filed or transmitted for filing with the Commission; and no stop
order suspending the effectiveness of the Initial Registration
Statement, any post-effective amendment thereto or the Rule 462(b)
Registration Statement, if any, has been issued and no proceeding for
that purpose has been initiated or threatened by the Commission (any
preliminary prospectus included in the Initial Registration Statement
or filed with the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the Act, being hereinafter called a
"Preliminary Prospectus"; the various parts of the Initial Registration
Statement and the Rule 462(b) Registration Statement, if any, including
all exhibits thereto and the documents incorporated by reference in the
prospectus contained in the Initial Registration Statement at the time
such part of the registration statement became effective but excluding
Form T-1, each as amended at the time such part of the registration
statement
3
became effective or such part of the Rule 462(b) Registration Statement, if
any, became or hereafter becomes effective, being hereinafter called the
"Registration Statement"; the prospectus relating to the Securities, in the
form in which it has most recently been filed, or transmitted for filing,
with the Commission on or prior to the date of this Agreement, being
hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to the
applicable form under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the date
of such Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report of the
Company filed pursuant to Sections 13(a) or 15(d) of the Exchange Act after
the effective date of the Initial Registration Statement that is
incorporated by reference in the Registration Statement; and any reference
to the Prospectus as amended or supplemented shall be deemed to refer to
the Prospectus as amended or supplemented in relation to the applicable
Designated Securities in the form in which it is filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 5(a)
hereof, including any documents incorporated by reference therein as of the
date of such filing);
(b) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the Commission,
as the case may be, conformed in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules
4
and regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so filed and
incorporated by reference in the Prospectus or any further amendment or
supplement thereto, when such documents become effective or are filed with
the Commission, as the case may be, will conform in all material respects
to the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter of Designated Securities through the Representatives expressly
for use in the Prospectus as amended or supplemented relating to such
Securities;
(c) The Registration Statement and the Prospectus conform,
and any further amendments or supplements to the Registration Statement or
the Prospectus will conform, in all material respects to the requirements
of the Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the rules and regulations of the Commission thereunder
and do not and will not, as of the applicable effective date as to the
Initial Registration Statement and any amendment thereto and as of the
applicable filing date as to the Prospectus and any amendment or supplement
thereto, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance
5
upon and in conformity with information furnished in writing to the
Company by an Underwriter of Designated Securities through the
Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities;
(d) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, which is material to the
Company and its subsidiaries taken as a whole, otherwise than as set forth
or contemplated in the Prospectus; and, since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, there has not been any material change in the consolidated
capital stock or any material increase in the consolidated long-term debt
of the Company and its subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the management, financial position, shareholders' equity or
results of operations of the Company and its subsidiaries taken as a whole,
otherwise than as set forth or contemplated in the Prospectus;
(e) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with corporate power and authority to
own its properties and conduct its business as described in the Prospectus,
and is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or the ownership or
leasing of its property requires such qualification, except where failure
to qualify would not in the aggregate have a
6
material adverse effect upon the Company and its subsidiaries taken as a
whole;
(f) Each of the following subsidiaries of the Company:
[Abbott Manufacturing, Inc., Abbott Chemicals, Inc. and Abbott Health
Products, Inc.,] [UPDATE AS NECESSARY] has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct
of its business or the ownership or leasing of its property requires such
qualification, except where failure to qualify would not in the aggregate
have a material adverse effect upon the Company and its subsidiaries taken
as a whole;
(g) The Securities have been duly authorized, and, when
Designated Securities are issued and delivered pursuant to this Agreement
and the Pricing Agreement with respect to such Designated Securities, such
Designated Securities will have been duly executed, authenticated, issued
and delivered and will constitute valid and legally binding obligations of
the Company entitled to the benefits provided by the Indenture, which was
incorporated by reference as an exhibit to the Registration Statement; the
Indenture has been duly authorized and duly qualified under the Trust
Indenture Act and, at the Time of Delivery for such Designated Securities
(as defined in Section 4 hereof), the Indenture will constitute a valid and
legally binding instrument, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and the Indenture conforms, and
the Designated Securities will conform, to the descriptions thereof
contained in the Prospectus as amended or supplemented with respect to such
Designated Securities;
7
(h) The issue and sale of the Securities and the compliance
by the Company with all of the provisions of the Securities, the Indenture,
this Agreement and any Pricing Agreement, and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any of the property or assets of the
Company or any of its subsidiaries pursuant to the terms of, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the property
or assets of the Company or any of its subsidiaries is subject, the effects
of which would in the aggregate be materially adverse to the Company and
its subsidiaries taken as a whole, nor will such action result in any
violation of the provisions of the Articles of Incorporation or By-Laws of
the Company or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of
its subsidiaries or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body is required for the issue and sale of
the Securities or the consummation by the Company of the transactions
contemplated by this Agreement or any Pricing Agreement or the Indenture,
except such as have been, or will have been prior to the Time of Delivery,
obtained under the Act and the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Underwriters;
(i) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings
8
pending to which the Company or any of its subsidiaries is a party or of
which any property of the Company or any of its subsidiaries is the subject
(including, without limitation, any proceedings before the United States
Food and Drug Administration or comparable federal, state, local or foreign
governmental bodies) that, individually or in the aggregate, could
reasonably be expected to have a material adverse effect on the
consolidated financial position of the Company and its subsidiaries; and,
to the best of the Company's knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threatened by others; and
(j) Neither the Company nor any of its affiliates does
business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075, Florida Statutes.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the
release of such Designated Securities, the several Underwriters propose to
offer such Designated Securities for sale upon the terms and conditions set
forth in the Prospectus as amended or supplemented.
4. Designated Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in definitive form to
the extent practicable, and in such authorized denominations and registered
in such names as the Representatives may request upon at least forty-eight
hours' prior notice to the Company, shall be delivered by or on behalf of
the Company to the Representatives for the account of such Underwriter,
against payment by such Underwriter or on its behalf of the purchase price
therefor by wire transfer or certified or official bank check or checks,
payable to the order of the Company in the funds specified in such Pricing
Agreement, all in the manner and at the place and time and
9
date specified in such Pricing Agreement or at such other place and time
and date as the Representatives and the Company may agree upon in writing,
such time and date being herein called the "Time of Delivery" for such
Securities.
5. The Company agrees with each of the Underwriters of any
Designated Securities:
(a) To prepare the Prospectus as amended or supplemented in
relation to the applicable Designated Securities in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the second
business day following the execution and delivery of the Pricing Agreement
relating to the applicable Designated Securities or, if applicable, such
earlier time as may be required by Rule 424(b); to make no further
amendment or any supplement to the Registration Statement or Prospectus as
amended or supplemented after the date of the Pricing Agreement relating to
such Securities and prior to the Time of Delivery for such Securities that
shall be disapproved by the Representatives for such Securities promptly
after reasonable notice thereof; to advise the Representatives promptly of
any such amendment or supplement after such Time of Delivery and furnish
the Representatives with copies thereof; to file promptly all reports and
any definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act for so long as the delivery of a prospectus is required
in connection with the offering or sale of such Securities, and during such
same period to advise the Representatives, promptly after it receives
notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed with the Commission, of
the issuance by the Commission of any stop order
10
or of any order preventing or suspending the use of any prospectus relating
to the Securities, of the suspension of the qualification of such
Securities for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose or of any request by the
Commission for the amending or supplementing of the Registration Statement
or Prospectus or for additional information; and, in the event of the
issuance of any such stop order or of any such order preventing or
suspending the use of any prospectus relating to the Securities or
suspending any such qualification, to use promptly its best efforts to
obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of such Securities,
provided that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(c) As soon as practicable on the New York Business Day
next succeeding the date of this Agreement and from time to time, to
furnish the Underwriters with copies of the Prospectus in New York City as
amended or supplemented in such quantities as the Representatives
reasonably request and, if the delivery of a prospectus is required at any
time in connection with the offering or sale of the Securities and if at
such time any event shall have occurred as a result of which the Prospectus
as then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to make
the statements there-
11
in, in the light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or if for any other reason it
shall be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Act, the Exchange
Act or the Trust Indenture Act, to notify the Representatives and upon
their request to file such document and to prepare and furnish without
charge to each Underwriter and to any dealer in securities as many copies
as the Representatives may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus that will correct such
statement or omission or effect such compliance;
(d) To make generally available to its securityholders as
soon as practicable, but in any event not later than eighteen months after
the effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158); and
(e) During the period beginning from the date of the
Pricing Agreement for such Designated Securities and continuing to and
including the earlier of (i) the termination of trading restrictions for
such Designated Securities, as notified to the Company by the
Representatives, and (ii) the Time of Delivery for such Designated
Securities, not to offer, sell, contract to sell or otherwise dispose of
any debt securities of the Company that mature more than nine months after
such Time of Delivery and that are substantially similar to such Designated
Securities, without the prior written consent of the Representatives.
12
6. The Company covenants and agrees with the several
Underwriters that the Company will pay or cause to be paid the following:
(i) the fees, disbursements and expenses of the Company's counsel and
accountants in connection with the registration of the Securities under the
Act and all other expenses in connection with the preparation, printing and
filing of the Registration Statement, any Preliminary Prospectus and the
Prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) the cost
of printing or producing any Agreement among Underwriters, this Agreement,
any Pricing Agreement, any Indenture, any Blue Sky survey and any other
documents in connection with the offering, purchase, sale and delivery of
the Securities; (iii) all expenses in connection with the qualification of
the Securities for offering and sale under state securities laws as
provided in Section 5(b) hereof, including the reasonable fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky survey; (iv) any
reasonable fees charged by securities rating services for rating the
Securities; (v) any filing fees incident to any required review by the
National Association of Securities Dealers, Inc. of the terms of the sale
of the Securities; (vi) the cost of preparing the Securities; (vii) the
fees and expenses of any Trustee and any agent of any Trustee and the fees
and disbursements of counsel for any Trustee in connection with any
Indenture and the Securities; and (viii) all other costs and expenses
incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section. It is understood,
however, that, except as provided in this Section, Section 8 and Section 11
hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, transfer taxes on resale of any of the
Securities by them, and any advertising expenses connected with any offers
they may make.
13
7. The obligations of the Underwriters of any Designated
Securities under the Pricing Agreement relating to such Designated
Securities shall be subject, in the discretion of the Representatives, to
the condition that all representations and warranties and other statements
of the Company in or incorporated by reference in the Pricing Agreement
relating to such Designated Securities are, at and as of the Time of
Delivery for such Designated Securities, true and correct, the condition
that the Company shall have performed all of its obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation
to the applicable Designated Securities shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the Act and
in accordance with Section 5(a) hereof; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional information
on the part of the Commission shall have been complied with to the
Representatives' reasonable satisfaction;
(b) Counsel for the Underwriters shall have furnished to
the Representatives such opinion or opinions, dated the Time of Delivery
for such Designated Securities, with respect to the incorporation of the
Company, the validity of the Indenture, the Designated Securities, the
Registration Statement, the Prospectus as amended or supplemented and other
related matters as the Representatives may reasonably request, and such
counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
14
(c) Jose M. de Lasa, General Counsel of the Company (or
such other person who shall be General Counsel of the Company at such Time
of Delivery) shall have furnished to the Representatives his written
opinion, dated the Time of Delivery for such Designated Securities, in form
and substance satisfactory to the Representatives, to the effect that:
(i) The Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws
of the State of Illinois, with corporate power and authority to
own its properties and conduct its business as described in the
Prospectus as amended or supplemented, and is duly qualified to
transact business and is in good standing in each jurisdiction in
which the conduct of its business or the ownership or leasing of
property requires such qualification, except where failure to
qualify would not in the aggregate have a material adverse effect
upon the Company and its subsidiaries taken as a whole;
(ii) Each of the following subsidiaries of the
Company: [Abbott Manufacturing, Inc., Abbott Chemicals, Inc. and
Abbott Health Products, Inc.,] [UPDATE AS APPROPRIATE] has been
duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
incorporation and is duly qualified to transact business and is
in good standing
15
in each jurisdiction in which the conduct of its business or the
ownership or leasing of its property requires such qualification,
except where failure to qualify would not in the aggregate have a
material adverse effect upon the Company and its subsidiaries taken as
a whole;
(iii) To the best of such counsel's knowledge and
other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of
its subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject that,
individually or in the aggregate, could reasonably be expected to
have a material adverse effect on the consolidated financial
position of the Company and its subsidiaries; to the best of such
counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(iv) This Agreement and the Pricing Agreement
with respect to the Designated Securities have been duly
authorized, executed and delivered by the Company;
(v) The Designated Securities have been duly
authorized, executed, authenticated, issued and delivered and
constitute valid and legally
16
binding obligations of the Company entitled to the benefits provided
by the Indenture, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and the Designated Securities and the Indenture conform to
the descriptions thereof in the Prospectus as amended or supplemented;
(vi) The Indenture has been duly authorized,
executed and delivered by the Company and duly qualified under
the Trust Indenture Act and, assuming due execution and delivery
by the Trustee, constitutes and, at the Time of Delivery for such
Designated Securities (as defined in Section 4 hereof), will
constitute, a valid and legally binding instrument, enforceable
in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to
general equity principles;
(vii) The issue and sale of the Designated
Securities and the compliance by the Company with all of the
provisions of the Designated Securities, the Indenture, this
Agreement and the Pricing
17
Agreement with respect to the Designated Securities will not conflict
with or result in a breach of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any of the property or assets of
the Company or any of its subsidiaries pursuant to the terms of, any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument known to such counsel to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, the effects of which
would, in the aggregate, be materially adverse to the Company and its
subsidiaries taken as a whole, nor will such action result in any
violation of the provisions of the Articles of Incorporation or the
By-Laws of the Company or any statute or any order, rule or regulation
known to such counsel of any court or governmental agency or body
having jurisdiction over the Company or any of its subsidiaries or any
of their properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency
18
or body is required for the issue and sale by the Company of the
Designated Securities or the execution, delivery and performance by
the Company of this Agreement, such Pricing Agreement or the
Indenture, except such as have been obtained under the Act and the
Trust Indenture Act and such consents, approvals, authorizations,
orders, registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Designated Securities by the Underwriters;
(viii) The documents incorporated by reference in
the Prospectus as amended or supplemented (other than the
financial statements and related schedules and other financial
and statistical data therein, as to which such counsel need
express no opinion), when they became effective or were filed
with the Commission, as the case
19
may be, complied as to form in all material respects with the
requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder; and no facts have
come to the attention of such counsel which have caused him to
believe that any of such documents, when they became effective or were
so filed, as the case may be, in the case of a registration statement
which became effective under the Act, contained an untrue statement of
a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, or, in the case of other documents which were filed under
the Act or the Exchange Act with the Commission, contained an untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such documents were so
filed, not misleading; and
(ix) The Registration Statement and the
Prospectus as amended or supplemented and any further amendments
and supplements thereto made by the Company prior to the Time of
Delivery for the Designated Securities (other than the financial
statements and related schedules and other financial and
statistical data therein, as to which such counsel need express
no opinion) comply as to form in all material respects with the
requirements of the Act and the Trust Indenture Act and the rules
and regulations thereunder; no facts have come to the attention
of such counsel which have caused him to believe
20
that, as of its effective date, the Registration Statement or any
further amendment thereto made by the Company prior to the Time of
Delivery (other than the financial statements and related schedules
and other financial and statistical data therein, as to which such
counsel need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading or that, as of its date, the Prospectus as amended or
supplemented or any further amendment or supplement thereto made by
the Company prior to the Time of Delivery (other than the financial
statements and related schedules
21
and other financial and statistical data therein, as to which such
counsel need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading or that, as of the Time of Delivery,
either the Registration Statement or the Prospectus as amended or
supplemented or any further amendment or supplement thereto made by
the Company prior to the Time of Delivery (other than the financial
statements and related schedules and other financial and statistical
data therein, as to which such counsel need express no opinion)
contains an untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; and
such counsel does not know of any amendment to the Registration
Statement required to be filed or any contracts or other documents of
a character required to be filed as an exhibit to the Registration
Statement or required to be incorporated by reference into the
Prospectus as amended or supplemented or required to be described in
the Registration Statement or the Prospectus as amended or
supplemented which are not filed or incorporated by reference or
described as required.
(d) Mayer, Brown & Platt, special counsel for the Company,
or other outside counsel to the Company satisfactory to the
Representatives, shall have furnished to the Representatives its written
opinion, dated the Time of Delivery for such Designated Securities, in form
and substance satisfactory to the Representatives, to the effect that:
(i) This Agreement and the Pricing Agreement with
respect to the Designated Securities have been duly authorized,
executed and delivered by the Company;
22
(ii) The Designated Securities have been duly
authorized, executed, authenticated, issued and delivered and
constitute valid and legally binding obligations of the Company
entitled to the benefits provided by the Indenture, subject, as
to enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and the
Designated Securities and the Indenture conform to the
descriptions thereof in the Prospectus as amended or
supplemented;
(iii) The Indenture has been duly authorized and
duly qualified under the Trust Indenture Act and, at the Time of
Delivery for such Designated Securities (as defined in Section 4
hereof), the Indenture will constitute a valid and legally
binding instrument, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating
to or affecting creditors' rights and to general equity
principles; and
(iv) The Registration Statement and the
Prospectus as amended or supplemented and any further amendments
and supplements thereto made by the Company prior
23
to the Time of Delivery for the Designated Securities (other than the
financial statements and related schedules and other financial and
statistical data therein, as to which such counsel need express no
opinion) comply as to form in all material respects with the
requirements of the Act and the Trust Indenture Act and the rules and
regulations thereunder; no facts have come to the attention of such
counsel which have caused them to believe that, as of its effective
date, the Registration Statement or any further amendment thereto made
by the Company prior to the Time of Delivery (other than the financial
statements and related schedules and other financial and statistical
data therein, as to which such counsel need express no opinion)
contained
24
an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading or that, as of its date, the Prospectus as
amended or supplemented or any further amendment or supplement thereto
made by the Company prior to the Time of Delivery (other than the
financial statements and related schedules and other financial and
statistical data therein, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or omitted
to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading or that, as of the Time of Delivery, either the
Registration Statement or the Prospectus as amended or supplemented or
any further amendment or supplement thereto made by the Company prior
to the Time of Delivery (other than the financial statements and
related schedules and other financial and statistical data therein, as
to which such counsel need express no opinion) contains an untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and such
counsel does not know of any amendment to the Registration Statement
required to be filed or any contracts or other documents of a
character required to be filed as an exhibit to the Registration
Statement or required to be incorporated by reference into the
Prospectus as amended or supplemented or required to be described in
the Registration Statement or the Prospectus as amended or
supplemented which are not filed or incorporated by reference or
described as required.
25
(e) On the date of the Pricing Agreement for such Designated
Securities at a time prior to the execution of the Pricing Agreement with
respect to such Designated Securities and at the Time of Delivery for such
Designated Securities, the independent accountants of the Company who have
certified the financial statements of the Company and its subsidiaries
included or incorporated by reference in the Registration Statement shall
have furnished to the Representatives a letter, dated the effective date of
the Registration Statement or the date of the most recent report filed with
the Commission containing financial statements and incorporated by
reference in the Registration Statement, if the date of such report is
later than such effective date, and a letter dated such Time of Delivery,
respectively, to the effect set forth in Annex II hereto, and with respect
to such letter dated such Time of Delivery, as to such other matters as the
Representatives may reasonably request prior to execution of the Pricing
Agreement and in form and substance satisfactory to the Representatives;
(f) (i) Neither the Company nor any of its subsidiaries
shall have sustained since the date of the latest financial statements
included or incorporated by reference in the Prospectus as amended or
supplemented any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus as amended or
supplemented, and (ii) since the respective dates as of which information
is given in the Prospectus as amended or supplemented there shall not have
been any change in the consolidated capital stock or any increase in the
consolidated long-term debt of the Company and its subsidiaries or any
change, or any development involving a prospective change, in or affecting
the management, financial position, shareholders' equity or results of
26
operations of the Company and its subsidiaries, otherwise than as set forth
or contemplated in the Prospectus as amended or supplemented, the effect of
which, in any such case described in clause (i) or (ii), is in the judgment
of the Representatives so material and adverse as to make it impracticable
or inadvisable to proceed with the public offering or the delivery of the
Designated Securities on the terms and in the manner contemplated in the
Prospectus as amended or supplemented relating to the Designated
Securities;
(g) On or after the date of the Pricing Agreement relating
to the Designated Securities (i) no downgrading shall have occurred in the
rating accorded the Company's debt securities by any "nationally recognized
statistical rating organization," as that term is defined by the Commission
for purposes of Rule 436(g)(2) under the Act and (ii) no such organization
shall have publicly announced that it has under surveillance or review,
with possible negative implications, its rating of any of the Company's
debt securities;
(h) On or after the date of the Pricing Agreement relating
to the Designated Securities there shall not have occurred any of the
following: (i) a suspension of trading of the Company's Common Stock by the
Commission or the New York, Chicago or Pacific Stock Exchange precipitated
by the announcement by the Company of a material adverse event with respect
to the Company's business or financial position; (ii) a suspension or
material limitation in trading in securities generally on the New York
Stock Exchange; (iii) a general moratorium on commercial banking activities
in New York declared by either federal or New York State authorities; or
(iv) the outbreak or escalation of hostilities involving the United States
or the declaration by the United States of a national emergency or war or
any other calamity or crisis, if the effect of any such event specified in
this clause (iv) in the judgment of the Representatives makes
27
it impracticable or inadvisable to proceed with the public offering or the
delivery of the Designated Securities on the terms and in the manner
contemplated by the Prospectus as amended and supplemented relating to the
Designated Securities; and
(i) The Company shall have furnished or caused to be
furnished to the Representatives at the Time of Delivery for the Designated
Securities a certificate or certificates of officers of the Company
satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Company herein at and as of such Time
of Delivery, as to the performance by the Company of all of its obligations
hereunder to be performed at or prior to such Time of Delivery, as to the
matters set forth in subsections (a) and (f) of this Section.
8. (a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Securities, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such action
or claim as such expenses are incurred; provided, however, that the Company
shall not be liable in any such case to the extent that any such
28
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made
in any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Securities, or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company by any Underwriter of Designated Securities
through the Representatives expressly for use in the Prospectus as amended
or supplemented relating to such Securities; and provided, further, that
the Company shall not be liable to any Underwriter under the indemnity
agreement in this subsection (a) with respect to any Preliminary
Prospectus, or with respect to any Prospectus that has been amended or
supplemented to reflect an event subsequent to the effective date of the
Registration Statement, to the extent that any such loss, claim, damage or
liability of such Underwriter results from the fact that such Underwriter
sold Securities to a person to whom there was not sent or given, at or
prior to the written confirmation of such sale, a copy of the Prospectus as
then amended or supplemented (excluding documents incorporated by
reference) if the Company has previously furnished copies thereof to such
Underwriter and the loss, claim, damage or liability of such Underwriter
results from an untrue statement or omission of a material fact contained
in such Preliminary Prospectus or Prospectus which was corrected in the
Preliminary Prospectus or Prospectus (excluding documents incorporated by
reference) as then amended or supplemented (excluding documents
incorporated by reference).
(b) Each Underwriter will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the
Company may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue
29
statement of a material fact contained in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the
Prospectus as amended or supplemented and any other prospectus relating to
the Securities, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or
alleged omission was made in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as
amended or supplemented and any other prospectus relating the Securities,
or any such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through
the Representatives expressly for use therein; and will reimburse the
Company for any legal or other expenses reasonably incurred by the Company
in connection with investigating or defending any such action or claim as
such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the omission
so to notify the indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to
30
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and, after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be liable to
such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by
such indemnified party, in connection with the defense thereof other than
reasonable costs of investigation.
(d) If the indemnification provided for in this Section 8
is unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) referred to therein, then
each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages, or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters of the Designated Securities on the other
from the offering of the Designated Securities to which such loss, claim,
damage or liability (or action in respect thereof) relates. If, however,
the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (c) above, then each indemnifying party
shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand and the
Underwriters of the Designated Securities on the other in connection with
the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received by the
Company on the one hand
31
and such Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from such offering (before deducting
expenses) received by the Company bear to the total underwriting discounts
and commissions received by such Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company on the one hand or such Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or
by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to
above in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the applicable Designated Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
obligations of the Underwriters of Designated Securities in this subsection
32
(d) to contribute are several in proportion to their respective
underwriting obligations with respect to such Securities and not joint.
(e) The obligations of the Company under this Section 8
shall be in addition to any liability which the Company may otherwise have
and shall extend, upon the same terms and conditions, to each person, if
any, who controls any Underwriter within the meaning of the Act; and the
obligations of the Underwriters under this Section 8 shall be in addition
to any liability which the respective Underwriters may otherwise have and
shall extend, upon the same terms and conditions, to each officer and
director of the Company and to each person, if any, who controls the
Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Designated Securities which it has agreed to purchase under
the Pricing Agreement relating to such Designated Securities, the
Representatives may in their discretion arrange for themselves or another
party or other parties to purchase such Designated Securities on the terms
contained herein. If within thirty-six hours after such default by any
Underwriter the Representatives do not arrange for the purchase of such
Designated Securities, then the Company shall be entitled to a further
period of thirty-six hours within which to procure another party or other
parties satisfactory to the Representatives to purchase such Designated
Securities on such terms. In the event that, within the respective
prescribed period, the Representatives notify the Company that they have so
arranged for the purchase of such Designated Securities, or the Company
notifies the Representatives that it has so arranged for the purchase of
such Designated Securities, the Representatives or the Company shall have
the right to postpone the Time of Delivery for such Designated Securities
for a period of not more than seven days, in order
33
to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus as amended or supplemented, or in
any other documents or arrangements, and the Company agrees to file
promptly any amendments or supplements to the Registration Statement or the
Prospectus which in the opinion of the Representatives may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include
any person substituted under this Section with like effect as if such
person had originally been a party to the Pricing Agreement with respect to
such Designated Securities.
(b) If, after giving effect to any arrangements for the
purchase of the Designated Securities of a defaulting Underwriter or
Underwriters by the Representatives and the Company as provided in
subsection (a) above, the aggregate principal amount of such Designated
Securities which remains unpurchased does not exceed one-eleventh of the
aggregate principal amount of the Designated Securities, then the Company
shall have the right to require each non-defaulting Underwriter to purchase
the principal amount of Designated Securities which such Underwriter agreed
to purchase under the Pricing Agreement relating to such Designated
Securities and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the principal amount of Designated
Securities which such Underwriter agreed to purchase under such Pricing
Agreement) of the Designated Securities of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but nothing
herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the
purchase of the Designated Securities of a defaulting Underwriter or
Underwriters by the Representatives and the Company as provided in
subsection (a) above, the aggregate principal amount of Designated
Securities which remains unpurchased exceeds one-eleventh
34
of the aggregate principal amount of the Designated Securities, as referred
to in subsection (b) above, or if the Company shall not exercise the right
described in subsection (b) above to require non-defaulting Underwriters to
purchase Designated Securities of a defaulting Underwriter or Underwriters,
then the Pricing Agreement relating to such Designated Securities shall
thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the
Company and the Underwriters as provided in Section 6 hereof and the
indemnity and contribution agreements in Section 8 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its
default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several
Underwriters, as set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement, shall remain in full force
and effect, regardless of any investigation (or any statement as to the
results thereof) made by or on behalf of any Underwriter or any controlling
person of any Underwriter, or the Company, or any officer or director or
controlling person of the Company, and shall survive delivery of and
payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to
Section 9 hereof, the Company shall not then be under any liability to any
Underwriter with respect to the Designated Securities covered by such
Pricing Agreement except as provided in Section 6 and Section 8 hereof;
but, if for any other reason Designated Securities are not delivered by or
on behalf of the Company as provided herein, the Company will reimburse the
Underwriters through the Representatives for all out-of-pocket expenses
approved in writing by the Representatives, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
prepa-
35
rations for the purchase, sale and delivery of such Designated
Securities, but the Company shall then be under no further liability to any
Underwriter with respect to such Designated Securities except as provided
in Section 6 and Section 8 hereof.
12. In all dealings hereunder the Representatives of the
Underwriters of Designated Securities shall act on behalf of each of such
Underwriters, and the parties hereto shall be entitled to act and rely upon
any statement, request, notice or agreement on behalf of any Underwriter
made or given by such Representatives jointly or by such of the
Representatives, if any, as may be designated for such purpose in the
Pricing Agreement.
All statements, requests, notices and agreements hereunder shall
be in writing and if to the Underwriters shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Representatives
as set forth in the Pricing Agreement; and if to the Company shall be
delivered or sent by mail, telex or facsimile transmission to the address
of the Company set forth in the Registration Statement: Attention:
Secretary; provided, however, that any notice to an Underwriter pursuant to
Section 8(c) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its
Underwriters' Questionnaire, or telex constituting such Questionnaire,
which address will be supplied to the Company by the Representatives upon
request. Any such statements, requests, notices or agreements shall take
effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding
upon, and inure solely to the benefit of, the Underwriters, the Company
and, to the extent provided in Section 8 and Section 10 hereof, the
officers and directors of the Company and each person who controls the
Company or any Underwriter, and their respective
36
heirs, executors, administrators, successors and assigns, and no other
person shall acquire or have any right under or by virtue of this Agreement
or any such Pricing Agreement. No purchaser of any of the Securities from
any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
14. Time shall be of the essence of each Pricing Agreement. As
used herein, "business day" shall mean any day when the Commission's office
in Washington, D.C. is open for business.
15. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement and each Pricing Agreement may be executed by
any one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same
instrument.
Very truly yours,
ABBOTT LABORATORIES
By:
------------------------
Name:
Title:
37
ANNEX I
PRICING AGREEMENT
------------------
[Names of Representatives]
As the Representatives of
the several Underwriters
[c/o Name/Address]
, 199_
Ladies and Gentlemen:
Abbott Laboratories, an Illinois corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated , 1996 (the "Underwriting
Agreement"), between the Company and the Representatives of the several
Underwriters to issue and sell to the Underwriters named in Schedule I
hereto (the "Underwriters") the Securities specified in Schedule II hereto
(the "Designated Securities"). Each of the provisions of the Underwriting
Agreement is incorporated herein by reference in its entirety, and shall be
deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein; and each of the
representations and warranties set forth therein shall be deemed to have
been made at and as of the date of this Pricing Agreement, except that each
representation and warranty which refers to the Prospectus in Section 2 of
the Underwriting Agreement shall be deemed to be a representation or
warranty as of the date of the Underwriting Agreement in relation to the
Prospectus (as therein de-
I-1
fined), and also a representation and warranty as of the date of this
Pricing Agreement in relation to the Prospectus as amended or supplemented
relating to the Designated Securities which are the subject of this Pricing
Agreement. Each reference to the Representatives herein and in the
provisions of the Underwriting Agreement so incorporated by reference shall
be deemed to refer to you. Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the Representatives and on
behalf of each of the Underwriters of the Designated Securities pursuant to
Section 12 of the Underwriting Agreement and the address of the
Representatives referred to in such Section 12 are set forth at the end of
Schedule II hereto.
An amendment to the Initial Registration Statement, or a
supplement to the Prospectus, as the case may be, relating to the
Designated Securities, in the form heretofore delivered to you is now
proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees
to issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the
time and place and at the purchase price to the Underwriters set forth in
Schedule II hereto, the principal amount of Designated Securities set forth
opposite the name of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please
sign and return to us [ONE FOR THE ISSUER AND EACH OF THE REPRESENTATIVES
PLUS ONE FOR EACH COUNSEL] counterparts hereof, and upon acceptance hereof
by you, on behalf of each of the Underwriters, this letter and such
acceptance hereof, including the provisions of the Underwriting Agreement
incorporated herein by refer-
I-2
ence, shall constitute a binding agreement between each of the Underwriters
and the Company. It is understood that your acceptance of this letter on
behalf of each of the
I-3
Underwriters is or will be pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall be submitted to the
Company for examination upon request, but without warranty on the part of
the Representatives as to the authority of the signers thereof.
Very truly yours,
Abbott Laboratories
By:
-------------------------
Name:
Title:
Accepted as of the date hereof:
-------------------------------------
[Names of Representatives]
By:
-------------------------------
Name:
Title:
I-4
SCHEDULE I
Principal
Amount of
Designated
Securities
to be
Underwriter Purchased
----------- ---------
[Names(s) of Representatives(s)]. . . . . . . . . . . . $
[Names of other Underwriters] . . . . . . . . . . . . .
---------
Total . . . . . . . . . . . . . . . . . . . . . $
---------
---------
I-5
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due
AGGREGATE PRINCIPAL AMOUNT:
[$]
PRICE TO PUBLIC:
% of the principal amount of the Designated
Securities, plus accrued interest
from to
[and accrued amortization, if any, from
to ].
PURCHASE PRICE BY UNDERWRITERS:
% of the principal amount of the Designated Securities,
plus accrued interest
from to
[and accrued amortization, if any, from
to ].
METHOD OF AND SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
[By certified or official bank check or checks, payable to
the order of the Company in [[New York] Clearing House]
[immediately available] funds]
[By wire transfer to a bank account specified by the
Company in [next day] [immediately available] funds]
I-6
INDENTURE:
Indenture dated , 1993, between the
Company and Harris Trust and Savings Bank, as Trustee.
MATURITY:
INTEREST RATE:
[ %] [Zero Coupon] [See Floating Rate Provisions]
INTEREST PAYMENT DATES:
[months and dates]
REDEMPTION PROVISIONS:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise
than through the sinking fund, in whole or in part at
the option of the Company, in the amount of [$]
or an integral multiple thereof,
[on or after , at the following redemption
prices (expressed in percentages of principal amount).
If [redeemed on or before %, and if]
redeemed during the 12-month period beginning
REDEMPTION
YEAR PRICE
---- -----
I-7
and thereafter at 100% of their principal amount,
together in each case with accrued interest to the
redemption date.]
[on any interest payment date falling on or
after , at the election of the Company,
at a redemption price equal to the principal amount
thereof, plus accrued interest to the date of redemption.]
[Other possible redemption provisions, such as
mandatory redemption upon occurrence of certain events
or redemption for changes in tax law]
[Restriction on refunding]
SINKING FUND PROVISIONS:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit
of a sinking fund to retire [$] principal amount
of Designated Securities on in each of the
years through at 100% of their principal
amount plus accrued interest] [, together with
[cumulative] [noncumulative] redemptions at the option
of the Company to retire an additional [$]
principal amount of Designated Securities in the years
through at 100% of their principal amount plus
accrued interest].
[IF DESIGNATED SECURITIES ARE EXTENDABLE DEBT SECURITIES, INSERT ---
I-8
EXTENDABLE PROVISIONS:
Designated Securities are repayable on
[insert date and years], at the option of the holder,
at their principal amount with accrued interest. The
initial annual interest rate will be %, and
thereafter the annual interest rate will be adjusted on
, and to a rate not less than % of
the effective annual interest rate on U.S. Treasury
obligations with -year maturities as of the [insert
date 15 days prior to maturity date] prior to such
[insert maturity date].]
[IF DESIGNATED SECURITIES ARE FLOATING RATE DEBT SECURITIES, INSERT ---
FLOATING RATE PROVISIONS:
Initial annual interest rate will be %
through [and thereafter will be adjusted [monthly]
on each , and ] [to an annual rate of
% above the average rate for -year [month]
[securities] issued by and [insert names of
banks].] [and the annual interest rate [thereafter]
[from through ] will be the interest yield
equivalent of the weekly average per annum market
discount rate for -month Treasury bills plus % of
Interest Differential (the excess, if any, of (i) then
current weekly average per annum secondary market yield
for -month certificates of deposit over (ii) then
current interest yield equivalent of the weekly average
per annum market discount rate for -month Treasury
bills); [from and thereafter the rate will be the
then current interest
I-9
yield equivalent plus % of Interest Differential].]
DEFEASANCE PROVISIONS:
TIME OF DELIVERY:
CLOSING LOCATION FOR DELIVERY OF SECURITIES:
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc.:
[OTHER TERMS]- :
----------------
- Set forth or reference to an attached description any particular tax,
accounting or other unusual features of the Securities.
I-10
ANNEX II
ACCOUNTANTS' LETTER
Pursuant to Section 7(d) of the Underwriting Agreement, the
Company's independent certified public accountants shall furnish letters to
the effect that:
(i) They are independent certified public accountants with
respect to the Company within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the consolidated financial statements
and any financial statement schedules audited by them and included or
incorporated by reference in the Registration Statement or the
Prospectus comply as to form in all material respects with the
applicable accounting requirements of the Act or the Exchange Act, as
applicable, and the related published rules and regulations
thereunder; and they have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the condensed consolidated interim financial statements of the
Company for the periods specified in such letter, as indicated in
their reports thereon, copies of which have been furnished to the
representative or representatives of the Underwriters (the
"Representatives");
(iii) The unaudited selected financial information with
respect to the consolidated results of operations and financial
position of the Company for the five most recent fiscal years included
in the Prospectus and included or incorporated by reference in Item 6
of the Company's Annual Report on Form 10-K for the most recent fiscal
year agrees with the corresponding amounts (after restatement where
applicable) in the
II-1
audited consolidated financial statements for the five such fiscal
years which were included or incorporated by reference in the
Company's Annual Reports on Form 10-K for such fiscal years;
(iv) They have compared the information in the Prospectus
under selected captions with the disclosure requirements of Regulation
S-K and on the basis of limited procedures specified in such letter
nothing came to their attention as a result of the foregoing
procedures that caused them to believe that this information does not
conform in all material respects with the disclosure requirements of
Items 301, 302, 402 and 503(d), respectively, of Regulation S-K;
(v) On the basis of performing the procedures specified by
the American Institute of Certified Public Accountants for a review of
interim financial information as described in SAS No. 71, Interim
Financial Information on the unaudited condensed consolidated
financial statements included in the Company's quarterly report on
Form 10-Q for the periods specified in such letter, and making
inquiries of officials of the Company who have responsibility for
financial and accounting matters, nothing came to their attention that
caused them to believe that:
(A) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated
statements of cash flows included or incorporated by reference
in the Company's Quarterly Reports on Form 10-Q incorporated
by reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements
of the Exchange Act as it applies to Form 10-Q and the related
published rules and regulations thereunder or that any
material modification should be made to those finan-
II-2
cial statements for them to be in conformity with generally
accepted accounting principles; and
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus do not agree
with the corresponding items in the unaudited consolidated
financial statements from which such data and items were
derived.
(vi) On the basis of limited procedures, not constituting
an audit in accordance with generally accepted auditing standards,
consisting of a reading of the latest available interim financial
statements of the Company and its subsidiaries, inspection of the minute
books of the Company since the date of the latest audited financial
statements incorporated by reference in the Prospectus, inquiries of
officials of the Company responsible for financial and accounting matters
and such other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) the unaudited consolidated financial statements were
not stated on a basis substantially consistent with that of
the audited consolidated financial statements incorporated by
reference in the Company's Annual Report on Form 10-K for the
most recent fiscal year, except for the adoption of any
required accounting standard issued by the Financial
Accounting Standards Board or any successor thereof as
described in such letter;
(B) there have been any changes in the consolidated
common shares (other than incentive stock plan transactions or
purchases of common shares authorized for purchase by the
Board of Directors) or any increase in the consolidated long-
term debt of the Company and its subsidiaries, or any
decreases in consolidated net current
II-3
assets or net assets or other items specified by the
Representatives, or any increases in any items specified by
the Representatives, in each case as compared with amounts
shown in the latest balance sheet included or incorporated by
reference in the Prospectus, except in each case for changes,
increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter;
(C) there were any decreases in consolidated net sales
or operating profit or the total or per share amounts of
consolidated net income or other items specified by the
Representatives, or any increases in any items specified by
the Representatives, in each case as compared with the
comparable period of the preceding year and with any other
period of corresponding length specified by the
Representatives, except in each case for increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(D) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference in
the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the
Act and the published rules and regulations thereunder or the
pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements.
(vii) On the basis of limited procedures, not constituting an
audit in accordance with generally accepted auditing standards,
consisting of inspection of the minute books of the Company since the
date of the latest audited financial statements incorporated by
reference in the Prospectus and inquiries of officials
II-4
of the Company responsible for financial and accounting matters and
such other inquiries and procedures that may be specified in such
letter, nothing came to their attention that caused them to believe
that:
(A) as of a specified date not more than five days prior
to the date of such letter, there have been any changes in the
consolidated common shares (other than incentive stock plan
transactions or purchases of common shares authorized for
purchase by the Board of Directors) or any increase in the
consolidated long-term debt of the Company and its
subsidiaries, or any decreases in consolidated net current
assets or net assets or other items specified by the
Representatives, or any increases in any items specified by
the Representatives, in each case as compared with amounts
shown in the latest balance sheet included or incorporated by
reference in the Prospectus, except in each case for changes,
increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter;
(B) for the period from the date of the latest financial
statements included or incorporated by reference in the
Prospectus to the specified date referred to in clause (A)
there were any decreases in consolidated net sales or
operating profit or the total or per share amounts of
consolidated net income or other items specified by the
Representatives, or any increases in any items specified by
the Representatives, in each case as compared with the
comparable period of the preceding year and with any other
period of corresponding length specified by the
Representatives, except in each case for increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
II-5
(C) In addition to the audit referred to in their
report(s) included or incorporated by reference in the
Prospectus and the limited procedures, inspection of minute
books, inquiries and other procedures referred to in
paragraphs (iii) through (vii) above, they have carried out
certain specified procedures, not constituting an audit in
accordance with generally accepted auditing standards, with
respect to certain amounts, percentages and financial
information specified by the Representatives which are derived
from the general accounting records of the Company and its
subsidiaries, which appear in the Prospectus (excluding
documents incorporated by reference), or in Part II of, or in
exhibits and schedules to, the Registration Statement
specified by the Representatives or in documents incorporated
by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts,
percentages and financial information with the accounting
records of the Company and its subsidiaries and have found
them to be in agreement.
All references in this Annex II to the Prospectus shall be
deemed to refer to the Prospectus (including the documents incorporated by
reference therein) as defined in the Underwriting Agreement as of the date
of the letter delivered on the date of the Pricing Agreement for purposes
of such letter and to the Prospectus as amended or supplemented (including
the documents incorporated by reference therein) in relation to the
applicable Designated Securities for purposes of the letter delivered at
the Time of Delivery for such Designated Securities.
II-6
EXHIBIT 5.1
June 17, 1996
Abbott Laboratories
100 Abbott Park Road
Abbott Park, Illinois 60064-3500
Ladies and Gentlemen:
I am Senior Vice President, Secretary and General Counsel of Abbott
Laboratories, an Illinois corporation (the "Company"), and have advised the
Company in connection with the proposed sale of up to $650,000,000 principal
amount of the Company's debt securities (the "Debt Securities"). The Debt
Securities are to be issued under the Company's indenture, dated as of October
1, 1993 (the "Indenture"), to Harris Trust and Savings Bank ("Harris Trust"), as
trustee, with certain terms of the Debt Securities to be established by certain
officers of the Company who have been authorized by its Board of Directors to do
so, as part of the corporate action taken and to be taken (the "Corporate
Proceedings") relating to the issuance of the Debt Securities. I, or members of
my staff, have examined or are otherwise familiar with the Restated Articles of
Incorporation of the Company, as amended, the By-Laws of the Company, as
amended, the registration statement pursuant to which the Debt Securities are to
be registered under the Securities Act of 1933, as amended, the Corporate
Proceedings and such other documents, records and instruments as I have deemed
necessary for the purposes of this opinion.
Based on the foregoing, I am of the opinion that, assuming the proper
execution of it by all required signatories other than the Company, the
Indenture is a valid and binding instrument and that, upon the completion of the
Corporate Proceedings and the authentication, sale and delivery of the Debt
Securities, the Debt Securities shall be legal, valid and binding obligations of
the Company, entitled to the benefits of the Indenture, including such terms as
are established pursuant to the Corporate Proceedings, in accordance with the
respective terms thereof (subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect and to general
principles of equity).
I hereby consent to the filing of this opinion as an Exhibit to the
Company's registration statement and to being named in the prospectus under the
caption "Legal Opinions" with respect to the matters stated therein.
Yours very truly,
/s/ Jose M. de Lasa
Jose M. de Lasa
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated January 15, 1996,
included or incorporated by reference in Abbott Laboratories' Form 10-K for the
year ended December 31, 1995, and to all references to our Firm included in this
registration statement.
Arthur Andersen LLP
Chicago, Illinois
June 14, 1996
EXHIBIT 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
Statement of Eligibility
Under the Trust Indenture Act of 1939
of a Corporation Designated to Act as
Trustee
Check if an Application to Determine
Eligibility of a Trustee Pursuant to Section
305(b)(2) _______________
HARRIS TRUST AND SAVINGS BANK
(NAME OF TRUSTEE)
Illinois 36-1194448
(STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
111 West Monroe Street; Chicago, Illinois 60603
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
Carolyn C. Potter; Harris Trust and Savings Bank;
311 West Monroe Street; Chicago, Illinois, 60606
312/461-2531
(NAME, ADDRESS AND TELEPHONE NUMBER FOR AGENT FOR SERVICE)
ABBOTT LABORATORIES
(NAME OF OBLIGOR)
Illinois
(STATE OF INCORPORATION)
36-0698440
(I.R.S. EMPLOYER IDENTIFICATION NUMBER)
One Abbott Park Road
Abbott Park, Illinois 60064-3500
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
Debt Securities
(TITLE OF INDENTURE SECURITIES)
1. GENERAL INFORMATION. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Commissioner of Banks and Trust Companies, State of Illinois,
Springfield, Illinois; Chicago Clearing House Association, 164
West Jackson Boulevard, Chicago, Illinois; Federal Deposit
Insurance Corporation, Washington, D.C.; The Board of Governors
of the Federal Reserve System,Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Harris Trust and Savings Bank is authorized to exercise corporate
trust powers.
2. AFFILIATIONS WITH OBLIGOR. If the Obligor is an affiliate of the Trustee,
describe each such affiliation.
The Obligor is not an affiliate of the Trustee.
3. thru 15.
NO RESPONSE NECESSARY
16. LIST OF EXHIBITS.
1. A copy of the articles of association of the Trustee is now in effect
which includes the authority of the trustee to commence business and
to exercise corporate trust powers.
A copy of the Certificate of Merger dated April 1, 1972 between Harris
Trust and Savings Bank, HTS Bank and Harris Bankcorp, Inc. which
constitutes the articles of association of the Trustee as now in
effect and includes the authority of the Trustee to commence business
and to exercise corporate trust powers was filed in connection with
the Registration Statement of Louisville Gas and Electric Company,
File No. 2-44295, and is incorporated herein by reference.
2. A copy of the existing by-laws of the Trustee.
A copy of the existing by-laws of the Trustee was filed in
connection with the Registration Statement of C-Cube Microsystems,
Inc.; File No. 33-97166, and is incorporated herein by reference.
3. The consents of the Trustee required by Section 321(b) of the Act.
(included as Exhibit A on page 2 of this statement)
4. A copy of the latest report of condition of the Trustee published
pursuant to law or the requirements of its supervising or examining
authority.
(included as Exhibit B on page 3 of this statement)
1
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee,
HARRIS TRUST AND SAVINGS BANK, a corporation organized and existing under the
laws of the State of Illinois, has duly caused this statement of eligibility to
be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Chicago, and State of Illinois, on the 20th day of May, 1996.
HARRIS TRUST AND SAVINGS BANK
By: /s/ Carolyn C. Potter
-------------------------
Carolyn C. Potter
Assistant Vice President
EXHIBIT A
The consents of the Trustee required by Section 321(b) of the Act.
Harris Trust and Savings Bank, as the Trustee herein named, hereby consents that
reports of examinations of said trustee by Federal and State authorities may be
furnished by such authorities to the Securities and Exchange Commission upon
request therefor.
HARRIS TRUST AND SAVINGS BANK
By: /s/ Carolyn C. Potter
--------------------------
Carolyn C. Potter
Assistant Vice President
2
EXHIBIT B
Attached is a true and correct copy of the statement of condition of Harris
Trust and Savings Bank as of March 31, 1996, as published in accordance with a
call made by the State Banking Authority and by the Federal Reserve Bank of the
Seventh Reserve District.
[LOGO]
HARRIS BANK
Harris Trust and Savings Bank
111 West Monroe Street
Chicago, Illinois 60603
of Chicago, Illinois, And Foreign and Domestic Subsidiaries, at the close of
business on March 31, 1996, a state banking institution organized and operating
under the banking laws of this State and a member of the Federal Reserve System.
Published in accordance with a call made by the Commissioner of Banks and Trust
Companies of the State of Illinois and by the Federal Reserve Bank of this
District.
Bank's Transit Number 71000288
ASSETS THOUSANDS
OF DOLLARS
CASH AND BALANCES DUE FROM DEPOSITORY INSTITUTIONS:
NON-INTEREST BEARING BALANCES AND CURRENCY AND COIN . . . . . . . . . . . . $971,800
INTEREST BEARING BALANCES . . . . . . . . . . . . . . . . . . . . . . . . . . . $508,198
SECURITIES: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. HELD-TO-MATURITY SECURITIES $0
B. AVAILABLE-FOR-SALE SECURITIES $2,925,091
FEDERAL FUNDS SOLD AND SECURITIES PURCHASED UNDER AGREEMENTS TO RESELL IN
DOMESTIC OFFICES OF THE BANK AND OF ITS EDGE AND AGREEMENT
SUBSIDIARIES, AND IN IBF'S:
FEDERAL FUNDS SOLD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $304,450
SECURITIES PURCHASED UNDER AGREEMENTS TO RESELL . . . . . . . . . . . . . . . $0
LOANS AND LEASE FINANCING RECEIVABLES:
LOANS AND LEASES, NET OF UNEARNED INCOME . . . . . . . . . . . . . . . . . . $7,653,290
LESS: ALLOWANCE FOR LOAN AND LEASE LOSSES . . . . . . . . . . . . . . . . . . . $97,833
-----------
LOANS AND LEASES, NET OF UNEARNED INCOME, ALLOWANCE, AND RESERVE
(ITEM 4.A MINUS 4.B) . . . . . . . . . . . . . . . . . . . . . . . . . . . $7,555,457
ASSETS HELD IN TRADING ACCOUNTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $107,161
PREMISES AND FIXED ASSETS (INCLUDING CAPITALIZED LEASES) . . . . . . . . . . . . . . . . . $139,122
OTHER REAL ESTATE OWNED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $203
INVESTMENTS IN UNCONSOLIDATED SUBSIDIARIES AND ASSOCIATED COMPANIES. . . . . . . . . . . . $200
CUSTOMER'S LIABILITY TO THIS BANK ON ACCEPTANCES OUTSTANDING . . . . . . . . . . . . . . . $71,355
INTANGIBLE ASSETS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $18,251
OTHER ASSETS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $474,460
---------
TOTAL ASSETS $13,075,748
-----------
-----------
3
LIABILITIES
DEPOSITS:
IN DOMESTIC OFFICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $4,830,361
NON-INTEREST BEARING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $2,390,307
INTEREST BEARING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $2,440,054
IN FOREIGN OFFICES, EDGE AND AGREEMENT SUBSIDIARIES, AND IBF'S. . . . . . . . . . . . $2,990,031
NON-INTEREST BEARING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $71,451
INTEREST BEARING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $2,918,580
FEDERAL FUNDS PURCHASED AND SECURITIES SOLD UNDER AGREEMENTS TO REPURCHASE IN DOMESTIC
OFFICES OF THE BANK AND OF ITS EDGE AND AGREEMENT SUBSIDIARIES, AND IN IBF'S:
FEDERAL FUNDS PURCHASED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $882,146
SECURITIES SOLD UNDER AGREEMENTS TO REPURCHASE. . . . . . . . . . . . . . . . . . . . $2,020,913
TRADING LIABILITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
OTHER BORROWED MONEY:. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $66,711
A. WITH REMAINING MATURITY OF ONE YEAR OR LESS. . . . . . . . . . . . . . . . . . . . . . $897,852
B. WITH REMAINING MATURITY OF MORE THAN ONE YEAR. . . . . . . . . . . . . . . . . . . . . $11,520
BANK'S LIABILITY ON ACCEPTANCES EXECUTED AND OUTSTANDING . . . . . . . . . . . . . . . . . $71,355
SUBORDINATED NOTES AND DEBENTURES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . $295,000
OTHER LIABILITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $186,774
-----------
TOTAL LIABILITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $12,252,663
------------
------------
EQUITY CAPITAL
COMMON STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $100,000
SURPLUS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $275,000
A. UNDIVIDED PROFITS AND CAPITAL RESERVES . . . . . . . . . . . . . . . . . . . . . . . . $470,392
B. NET UNREALIZED HOLDING GAINS (LOSSES) ON AVAILABLE-FOR-SALE SECURITIES . . . . . . . . ($22,307)
--------------
TOTAL EQUITY CAPITAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $823,085
--------------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED STOCK, AND EQUITY CAPITAL. . . . . . . . . . . . $13,075,748
--------------
--------------
I, Steve Neudecker, Vice President of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System and
is true to the best of my knowledge and belief.
STEVE NEUDECKER
4/30/96
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and, to the best of our
knowledge and belief, has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and the
Commissioner of Banks and Trust Companies of the State of Illinois and is true
and correct.
EDWARD W. LYMAN,
ALAN G. McNALLY,
MARIBETH S. RAHE
Directors.
4
