Delaware
|
36-2382580
|
|||
(State of incorporation)
|
(IRS Employer
Identification
No.)
|
One John Deere Place, Moline, Illinois
|
61265
|
(309) 765-8000
|
||
(Address of principal executive offices)
|
(Zip Code)
|
(Telephone Number)
|
Title of each class
|
Name of each exchange on which registered
|
|
Common stock, $1 par value
|
New York Stock Exchange
|
|
Chicago Stock Exchange
|
||
Frankfurt (Germany) Stock Exchange
|
||
5-
7
/
8
% Debentures Due 2006 (issued by John
Deere B.V., a wholly-owned subsidiary, and guaranteed by Deere & Company) |
New York Stock Exchange
|
|
8.95% Debentures Due 2019
|
New York Stock Exchange
|
|
8-
1
/
2
% Debentures Due 2022
|
New York Stock Exchange
|
|
6.55% Debentures Due 2028
|
New York Stock Exchange
|
Name, age and office (at December 1, 2002),
and year elected to office
|
Principal occupation during last five years other
than office of the Company currently held
|
|||||||
Robert W. Lane
|
53
|
Chairman, President
and Chief Executive Officer
|
2000
|
2000 President and Chief Executive Officer; 1999-2000 Division President, 1998-99 Senior Vice President, Ag Division,
and Managing Director, Region II (Europe, Africa and the Middle East); 1996-98 Senior Vice President and Chief Financial Officer
|
||||
Samuel R. Allen*
|
49
|
Senior Vice President
|
2001
|
1999-2001 Vice President Region I (Latin America, the Far East, Australia and South Africa); 1998 Manager, Worldwide
Engine Manufacturing Operations; 1995-98 Manager, Engine Manufacturing Operations
|
||||
David C. Everitt
|
50
|
Division President
|
2001
|
1999-2000 Senior Vice President, Region II (Europe, Africa and the Middle East); 1998-99 Vice President, Region I (Latin
America, the Far East, Australia and South Africa)
|
||||
James R. Jenkins
|
57
|
Senior Vice President and General Counsel
|
2000
|
1999 and prior, Vice President, Secretary and General Counsel, Dow Corning
|
||||
John J. Jenkins*
|
57
|
Division President
|
2000
|
1997-2000 President, John Deere Health Care; 1999-2000 also Executive Sponsor, SAP**
|
||||
Nathan J. Jones
|
46
|
Senior Vice President and Chief Financial Officer
|
1998
|
1995-98 Vice President and Treasurer
|
||||
Pierre E. Leroy
|
54
|
Division President
|
1996
|
Has held this position for the last five years
|
||||
H. J. Markley
|
52
|
Division President
|
2001
|
2000-01 Senior Vice President, Worldwide Human Resources; 1996-2000 Senior Vice President, Construction
Division
|
||||
Michael P. Orr*
|
55
|
Division President
|
1997
|
Has held this position for the last five years
|
||||
David M. Purvis
|
51
|
Senior Vice President and Chief Technology Officer
|
2001
|
2000 and prior Vice President, Technology and Engineering, Allied Signal/Honeywell
|
(Millions of dollars except per share amounts)
|
2002*
|
2001*
|
2000
|
1999
|
1998
|
|||||||||||
For the Year Ended October 31:
|
||||||||||||||||
Total net sales and revenues
|
$
|
13,947
|
$
|
13,293
|
|
$
|
13,137
|
$
|
11,751
|
$
|
13,822
|
|||||
Net income (loss)
|
$
|
319
|
$
|
(64
|
)
|
$
|
486
|
$
|
239
|
$
|
1,021
|
|||||
Net income (loss) per sharebasic
|
$
|
1.34
|
$
|
(.27
|
)
|
$
|
2.07
|
$
|
1.03
|
$
|
4.20
|
|||||
Net income (loss) per sharediluted
|
$
|
1.33
|
$
|
(.27
|
)
|
$
|
2.06
|
$
|
1.02
|
$
|
4.16
|
|||||
Dividends declared per share
|
$
|
.88
|
$
|
.88
|
|
$
|
.88
|
$
|
.88
|
$
|
.88
|
|||||
At October 31:
|
||||||||||||||||
Total assets
|
$
|
23,768
|
$
|
22,663
|
|
$
|
20,469
|
$
|
17,578
|
$
|
18,002
|
|||||
Long-term borrowings
|
$
|
8,950
|
$
|
6,561
|
|
$
|
4,764
|
$
|
3,806
|
$
|
2,792
|
(a)
|
|
Securities authorized for issuance under equity compensation plans.
|
(b)
|
|
Security ownership of certain beneficial owners.
|
(c)
|
|
Security ownership of management.
|
(d)
|
|
Change in control.
|
(a)
|
|
Evaluation of disclosure controls and procedures.
|
(b)
|
|
Changes in internal controls.
|
Schedule II - Valuation and Qualifying Accounts for the years ended
|
||
October 31, 2002, 2001 and 2000
|
54
|
Date of Report
|
Item
|
Financial Statements
|
||
August 6, 2002
|
Item 9
|
None
|
||
August 13, 2002
|
Items 5 &7
|
Earnings release of the Company
|
||
September 3, 2002
|
Item 9
|
None
|
||
September 10, 2002
|
Item 9
|
None
|
||
October 2, 2002
|
Item 9
|
None
|
2002
|
2001
|
2000
|
|||||||||
Net Sales and Revenues
|
|||||||||||
Net sales
|
$
|
11,702.8
|
|
$
|
11,077.4
|
|
$
|
11,168.6
|
|||
Finance and interest income
|
|
1,339.2
|
|
|
1,445.2
|
|
|
1,321.3
|
|||
Health care premiums and fees
|
|
636.0
|
|
|
585.0
|
|
|
473.7
|
|||
Other income
|
|
269.0
|
|
|
185.3
|
|
|
173.2
|
|||
|
|
|
|
|
|
|
|
||||
Total
|
|
13,947.0
|
|
|
13,292.9
|
|
|
13,136.8
|
|||
|
|
|
|
|
|
|
|
||||
Costs and Expenses
|
|||||||||||
Cost of sales
|
|
9,593.4
|
|
|
9,376.4
|
|
|
8,936.1
|
|||
Research and development expenses
|
|
527.8
|
|
|
590.1
|
|
|
542.1
|
|||
Selling, administrative and general expenses
|
|
1,657.3
|
|
|
1,716.8
|
|
|
1,504.9
|
|||
Interest expense
|
|
637.1
|
|
|
765.7
|
|
|
676.5
|
|||
Health care claims and costs
|
|
518.4
|
|
|
476.0
|
|
|
380.5
|
|||
Other operating expenses
|
|
410.3
|
|
|
392.7
|
|
|
319.2
|
|||
|
|
|
|
|
|
|
|
||||
Total
|
|
13,344.3
|
|
|
13,317.7
|
|
|
12,359.3
|
|||
|
|
|
|
|
|
|
|
||||
Income (Loss) of Consolidated Group before Income Taxes
|
|
602.7
|
|
|
(24.8
|
)
|
|
777.5
|
|||
Provision for income taxes
|
|
258.3
|
|
|
17.7
|
|
|
293.8
|
|||
|
|
|
|
|
|
|
|
||||
Income (Loss) of Consolidated Group
|
|
344.4
|
|
|
(42.5
|
)
|
|
483.7
|
|||
|
|
|
|
|
|
|
|
||||
Equity in Income (Loss) of Unconsolidated Affiliates
|
|||||||||||
Credit
|
|
(3.8
|
)
|
|
(3.3
|
)
|
|
.6
|
|||
Other
|
|
(21.4
|
)
|
|
(18.2
|
)
|
|
1.2
|
|||
|
|
|
|
|
|
|
|
||||
Total
|
|
(25.2
|
)
|
|
(21.5
|
)
|
|
1.8
|
|||
|
|
|
|
|
|
|
|
||||
Net Income (Loss)
|
$
|
319.2
|
|
|
(64.0
|
)
|
$
|
485.5
|
|||
|
|
|
|
|
|
|
|
||||
Per Share Data
|
|||||||||||
Net income (loss) basic
|
$
|
1.34
|
|
$
|
(.27
|
)
|
$
|
2.07
|
|||
Net income (loss) diluted
|
$
|
1.33
|
|
$
|
(.27
|
)
|
$
|
2.06
|
|||
Dividends declared
|
$
|
.88
|
|
$
|
.88
|
|
$
|
.88
|
2002
|
2001
|
|||||||
ASSETS
|
||||||||
Cash and cash equivalents
|
$
|
2,814.9
|
|
$
|
1,030.0
|
|
||
Marketable securities
|
|
189.2
|
|
|
176.2
|
|
||
Receivables from unconsolidated affiliates
|
|
265.8
|
|
|
316.6
|
|
||
Trade accounts and notes receivable net
|
|
2,733.6
|
|
|
2,922.5
|
|
||
Financing receivables net
|
|
9,067.5
|
|
|
9,198.9
|
|
||
Other receivables
|
|
426.4
|
|
|
388.9
|
|
||
Equipment on operating leases net
|
|
1,609.2
|
|
|
1,939.3
|
|
||
Inventories
|
|
1,371.8
|
|
|
1,505.7
|
|
||
Property and equipment net
|
|
1,998.3
|
|
|
2,052.3
|
|
||
Investments in unconsolidated affiliates
|
|
180.6
|
|
|
198.4
|
|
||
Intangible assets net
|
|
894.9
|
|
|
874.0
|
|
||
Prepaid pension costs
|
|
49.6
|
|
|
652.0
|
|
||
Other assets
|
|
582.1
|
|
|
420.8
|
|
||
Deferred income taxes
|
|
1,490.1
|
|
|
883.1
|
|
||
Deferred changes
|
|
94.0
|
|
|
104.4
|
|
||
|
|
|
|
|
|
|||
Total assets
|
$
|
23,768.0
|
|
$
|
22,663.1
|
|
||
|
|
|
|
|
|
|||
LIABILITIES AND STOCKHOLDERS EQUITY
|
||||||||
LIABILITIES
|
||||||||
Short-term borrowings
|
$
|
4,437.3
|
|
$
|
6,198.5
|
|
||
Payables to unconsolidated affiliates
|
|
64.0
|
|
|
16.6
|
|
||
Accounts payable and accrued expenses
|
|
3,142.2
|
|
|
3,097.1
|
|
||
Health care claims and reserves
|
|
92.8
|
|
|
100.3
|
|
||
Accrued taxes
|
|
87.4
|
|
|
44.1
|
|
||
Deferred income taxes
|
|
24.5
|
|
|
12.9
|
|
||
Long-term borrowings
|
|
8,950.4
|
|
|
6,560.7
|
|
||
Retirement benefit accruals and other liabilities
|
|
3,806.2
|
|
|
2,640.7
|
|
||
|
|
|
|
|
|
|||
Total liabilities
|
|
20,604.8
|
|
|
18,670.9
|
|
||
|
|
|
|
|
|
|||
STOCKHOLDERS EQUITY
|
||||||||
Common stock, $1 par value (authorized 600,000,000 shares; issued 268,215,602 shares in 2002 and 2001), at
stated value
|
|
1,957.0
|
|
|
1,948.6
|
|
||
Common stock in treasury, 29,321,098 shares in 2002 and 30,883,879 shares in 2001, at cost
|
|
(1,322.2
|
)
|
|
(1,405.5
|
)
|
||
Unamortized restricted stock compensation
|
|
(17.8
|
)
|
|
(16.8
|
)
|
||
Retained earnings
|
|
3,912.6
|
|
|
3,834.8
|
|
||
|
|
|
|
|
|
|||
Total
|
|
4,529.6
|
|
|
4,361.l
|
|
||
|
|
|
|
|
|
|||
Minimum pension liability adjustment
|
|
(1,032.1
|
)
|
|
(16.2
|
)
|
||
Cumulative translation adjustment
|
|
(293.1
|
)
|
|
(285.5
|
)
|
||
Unrealized loss on derivatives
|
|
(47.0
|
)
|
|
(72.0
|
)
|
||
Unrealized gain on marketable securities
|
|
5.8
|
|
|
4.8
|
|
||
|
|
|
|
|
|
|||
Accumulated other comprehensive income (loss)
|
|
(1,366.4
|
)
|
|
(368.9
|
)
|
||
|
|
|
|
|
|
|||
Total stockholders equity
|
|
3,163.2
|
|
|
3,992.2
|
|
||
|
|
|
|
|
|
|||
Total liabilities and stockholders equity
|
$
|
23,768.0
|
|
$
|
22,663.1
|
|
||
|
|
|
|
|
|
2002
|
2001
|
2000
|
||||||||||
Cash Flows from Operating Activities
|
||||||||||||
Net income (loss)
|
$
|
319.2
|
|
$
|
(64.0
|
)
|
$
|
485.5
|
|
|||
Adjustments to reconcile net income (loss) to net cash provided by operating activities:
|
||||||||||||
Provision for doubtful receivable
|
|
160.7
|
|
|
113.0
|
|
|
75.0
|
|
|||
Provision for depreciation and amortization
|
|
725.3
|
|
|
718.3
|
|
|
647.9
|
|
|||
Undistributed earnings of unconsolidated affiliates
|
|
22.7
|
|
|
19.5
|
|
|
(1.2
|
)
|
|||
Credit for deferred income taxes
|
|
(1.2
|
)
|
|
(230.3
|
)
|
|
(132.9
|
)
|
|||
Changes in assets and liabilities:
|
||||||||||||
Receivables
|
|
158.2
|
|
|
316.9
|
|
|
(53.8
|
)
|
|||
Inventories
|
|
85.8
|
|
|
136.5
|
|
|
(184.0
|
)
|
|||
Accounts payable and accrued expenses
|
|
144.0
|
|
|
40.7
|
|
|
540.0
|
|
|||
Other
|
|
263.6
|
|
|
62.8
|
|
|
(296.5
|
)
|
|||
|
|
|
|
|
|
|
|
|
||||
Net cash provided by operating activities
|
|
1,878.3
|
|
|
1,113.4
|
|
|
1,080.0
|
|
|||
|
|
|
|
|
|
|
|
|
||||
Cash Flows from Investing Activities
|
||||||||||||
Collections of receivables
|
|
6,987.0
|
|
|
6,966.3
|
|
|
6,655.1
|
|
|||
Proceeds from sales of financing receivables
|
|
2,967.8
|
|
|
1,728.0
|
|
|
978.3
|
|
|||
Proceeds from maturities and sales of marketable securities
|
|
75.4
|
|
|
32.4
|
|
|
247.8
|
|
|||
Proceeds from sales of equipment on operating leases
|
|
495.2
|
|
|
391.7
|
|
|
334.6
|
|
|||
Proceeds from sale of a business
|
|
53.5
|
|
|||||||||
Cost of receivables acquired
|
|
(9,955.3
|
)
|
|
(9,795.7
|
)
|
|
(9,126.5
|
)
|
|||
Purchases of marketable securities
|
|
(87.8
|
)
|
|
(75.7
|
)
|
|
(61.9
|
)
|
|||
Purchases of properly and equipment
|
|
(358.7
|
)
|
|
(491.0
|
)
|
|
(426.7
|
)
|
|||
Cost of operating leases acquired
|
|
(487.9
|
)
|
|
(775.2
|
)
|
|
(939.9
|
)
|
|||
Acquisitions of businesses, net of cash acquired
|
|
(19.0
|
)
|
|
(315.2
|
)
|
|
(643.3
|
)
|
|||
Decrease (increase) in receivables from unconsolidated affiliates
|
|
14.8
|
|
|
(112.0
|
)
|
|
(135.2
|
)
|
|||
Other
|
|
1.0
|
|
|
81.5
|
|
|
7.4
|
|
|||
|
|
|
|
|
|
|
|
|
||||
Net cash used for investing activities
|
|
(314.0
|
)
|
|
(2,364.9
|
)
|
|
(3,110.3
|
)
|
|||
|
|
|
|
|
|
|
|
|
||||
Cash Flows from Financing Activities
|
||||||||||||
Increase (decrease) in short-term borrowings
|
|
(1,413.2
|
)
|
|
(506.6
|
)
|
|
1,785.8
|
|
|||
Proceeds from long-term borrowings
|
|
4,573.7
|
|
|
4,818.3
|
|
|
2,814.0
|
|
|||
Principal payments on long-term borrowings
|
|
(2,771.0
|
)
|
|
(2,118.5
|
)
|
|
(2,377.4
|
)
|
|||
Proceeds from issuance of common stock
|
|
48.0
|
|
|
17.8
|
|
|
15.9
|
|
|||
Repurchases of common stock
|
|
(1.2
|
)
|
|
(1.3
|
)
|
|
(.6
|
)
|
|||
Dividends paid
|
|
(208.9
|
)
|
|
(206.5
|
)
|
|
(206.0
|
)
|
|||
Other
|
|
(1.5
|
)
|
|
(2.8
|
)
|
|
(1.3
|
)
|
|||
|
|
|
|
|
|
|
|
|
||||
Net cash provided by financing activities
|
|
225.9
|
|
|
2,000.4
|
|
|
2,030.4
|
|
|||
|
|
|
|
|
|
|
|
|
||||
Effect of Exchange Rate Changes on Cash
|
|
(5.3
|
)
|
|
(10.6
|
)
|
|
(3.9
|
)
|
|||
|
|
|
|
|
|
|
|
|
||||
Net Increase (Decrease) in Cash and Cash Equivalents
|
|
1,784.9
|
|
|
738.3
|
|
|
(3.8
|
)
|
|||
Cash and Cash Equivalents at Beginning of Year
|
|
1,030.0
|
|
|
291.7
|
|
|
295.5
|
|
|||
|
|
|
|
|
|
|
|
|
||||
Cash and Cash Equivalents at End of Year
|
$
|
2,814.9
|
|
$
|
1,030.0
|
|
$
|
291.7
|
|
|||
|
|
|
|
|
|
|
|
|
Total
Equity
|
Common
Stock
|
Treasury
Stock
|
Unamortized Restricted
Stock*
|
Retained
Earnings
|
Other Comprehensive
Income
(Loss)
|
||||||||||||||||||
Balance October 31, 1999
|
$
|
4,094.3
|
|
$
|
1,850.4
|
$
|
(1,469.4
|
)
|
$
|
(21.3
|
)
|
$
|
3,855.3
|
|
$
|
(120.7
|
)
|
||||||
|
|
|
|||||||||||||||||||||
Comprehensive income (loss)
|
|||||||||||||||||||||||
Net income
|
|
485.5
|
|
|
485.5
|
|
|||||||||||||||||
Other comprehensive income (loss)
|
|||||||||||||||||||||||
Minimum pension liability adjustment
|
|
10.4
|
|
|
10.4
|
|
|||||||||||||||||
Cumulative translation adjustment
|
|
(115.0
|
)
|
|
(115.0
|
)
|
|||||||||||||||||
Unrealized loss on investments
|
|
(4.5
|
)
|
|
(4.5
|
)
|
|||||||||||||||||
|
|
|
|||||||||||||||||||||
Total comprehensive income
|
|
376.4
|
|
||||||||||||||||||||
|
|
|
|||||||||||||||||||||
Repurchases of common stock
|
|
(.6
|
)
|
|
(.6
|
)
|
|||||||||||||||||
Treasury shares reissued
|
|
31.0
|
|
|
31.0
|
|
|||||||||||||||||
Dividends declared
|
|
(205.4
|
)
|
|
(205.4
|
)
|
|||||||||||||||||
Other stockholder transactions
|
|
6.2
|
|
|
14.0
|
|
10.4
|
|
|
(18.2
|
)
|
||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||
Balance October 31, 2000
|
|
4,301.9
|
|
|
1,864.4
|
|
(1,439.0
|
)
|
|
(10.9
|
)
|
|
4,117.2
|
|
|
(229.8
|
)
|
||||||
|
|
|
|||||||||||||||||||||
Comprehensive income (loss)
|
|||||||||||||||||||||||
Net income (loss)
|
|
(64.0
|
)
|
|
(64.0
|
)
|
|||||||||||||||||
Other comprehensive income (loss)
|
|||||||||||||||||||||||
Minimum pension liability adjustment
|
|
(7.7
|
)
|
|
(7.7
|
)
|
|||||||||||||||||
Cumulative translation adjustment
|
|
(63.1
|
)
|
|
(63.1
|
)
|
|||||||||||||||||
Unrealized loss on derivatives
|
|
(72.0
|
)
|
|
(72.0
|
)
|
|||||||||||||||||
Unrealized gain on investments
|
|
3.7
|
|
|
3.7
|
|
|||||||||||||||||
|
|
|
|||||||||||||||||||||
Total comprehensive income (loss)
|
|
(203.1
|
)
|
||||||||||||||||||||
|
|
|
|||||||||||||||||||||
Repurchases of common stock
|
|
(1.3
|
)
|
|
(1.3
|
)
|
|||||||||||||||||
Treasury shares reissued
|
|
34.8
|
|
|
34.8
|
|
|||||||||||||||||
Dividends declared
|
|
(206.1
|
)
|
|
(206.1
|
)
|
|||||||||||||||||
Acquisition of a business
|
|
80.5
|
|
|
80.5
|
||||||||||||||||||
Other stockholder transactions
|
|
(14.5
|
)
|
|
3.7
|
|
(5.9
|
)
|
|
(12.3
|
)
|
||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||
Balance October 31, 2001
|
|
3,992.2
|
|
|
1,948.6
|
|
(1,405.5
|
)
|
|
(16.8
|
)
|
|
3,834.8
|
|
|
(368.9
|
)
|
||||||
|
|
|
|||||||||||||||||||||
Comprehensive income (loss)
|
|||||||||||||||||||||||
Net income
|
|
319.2
|
|
|
319.2
|
|
|||||||||||||||||
Other comprehensive income (loss)
|
|||||||||||||||||||||||
Minimum pension liability adjustment
|
|
(1,015.9
|
)
|
|
(1,015.9
|
)
|
|||||||||||||||||
Cumulative translation adjustment
|
|
(7.6
|
)
|
|
(7.6
|
)
|
|||||||||||||||||
Unrealized gain on derivatives
|
|
25.0
|
|
|
25.0
|
|
|||||||||||||||||
Unrealized gain on investments
|
|
1.0
|
|
|
1.0
|
|
|||||||||||||||||
|
|
|
|||||||||||||||||||||
Total comprehensive income (loss)
|
|
(678.3
|
)
|
||||||||||||||||||||
|
|
|
|||||||||||||||||||||
Repurchases of common stock
|
|
(1.2
|
)
|
|
(1.2
|
)
|
|||||||||||||||||
Treasury shares reissued
|
|
84.5
|
|
|
84.5
|
|
|||||||||||||||||
Dividends declared
|
|
(209.3
|
)
|
|
(209.3
|
)
|
|||||||||||||||||
Other stockholder transactions
|
|
(24.7
|
)
|
|
8.4
|
|
(1.0
|
)
|
|
(32.1
|
)
|
||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||
Balance October 31, 2002
|
$
|
3,163.2
|
|
$
|
1,957.0
|
$
|
(1,322.2
|
)
|
$
|
(17.8
|
)
|
$
|
3,912.6
|
|
$
|
(1,366.4
|
)
|
||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2.
|
|
SPECIAL ITEMS
|
Reserves and Liabilities
2001
|
Accruals and Adjustments
|
Liquidations and Payments
|
Reserves and Liabilities 2002
|
|||||||||||
Property and equipment reserves
|
$
|
38
|
$
|
29
|
|
|
(33
|
)
|
$
|
34
|
||||
Inventory reserves
|
|
33
|
|
5
|
|
|
(36
|
)
|
|
2
|
||||
Termination benefits
|
|
24
|
|
12
|
|
|
(25
|
)
|
|
11
|
||||
Contract terminations
|
|
27
|
|
12
|
|
|
(21
|
)
|
|
18
|
||||
Warranties and product returns
|
|
16
|
|
(8
|
)
|
|
(7
|
)
|
|
1
|
||||
Other costs
|
|
7
|
|
8
|
|
|
(3
|
)
|
|
12
|
||||
|
|
|
|
|
|
|
|
|
|
|||||
Total
|
$
|
145
|
$
|
58
|
*
|
$
|
(125
|
)
|
$
|
78
|
||||
|
|
|
|
|
|
|
|
|
|
|||||
|
2001
|
|
Additions
|
|
|
Terminations
|
|
|
2002
|
|||||
Employees to be terminated
|
|
1,000
|
|
900
|
**
|
|
(1700
|
)
|
|
200
|
*
|
|
In addition to these reserves and accruals, the company recognized $3 million of early-retirement benefits and $11 million of other non-accruable restructuring
costs for a total of $72 million.
|
**
|
|
The decrease in the termination benefits liability is not proportional to the employees terminated since certain benefits related to past services are not paid
immediately upon termination.
|
Accruals
and
Adjustments
|
Liquidations
and
Payments
|
Reserves and
Liabilities
2001
|
||||||||
Property and equipment reserves
|
$
|
38
|
$
|
38
|
||||||
Inventory reserves
|
|
33
|
|
33
|
||||||
Termination benefits
|
|
26
|
$
|
(2
|
)
|
|
24
|
|||
Contract terminations
|
|
27
|
|
27
|
||||||
Warranties and product returns
|
|
16
|
|
16
|
||||||
Goodwill write-off
|
|
5
|
|
(5
|
)
|
|||||
Other costs
|
|
10
|
|
(3
|
)
|
|
7
|
|||
|
|
|
|
|
|
|
||||
Total
|
|
155
|
|
(10
|
)
|
|
145
|
|||
Early-retirement benefits
|
|
189
|
|
189
|
||||||
|
|
|
|
|
|
|
||||
Total
|
$
|
344
|
$
|
(10
|
)
|
$
|
334
|
|||
|
|
|
|
|
|
|
2001
|
||||||||||
Employees to be terminated
|
1,000
|
*
|
|
In the fourth quarter of 2001, the company accrued voluntary early-retirement benefits based on acceptances to be paid from pension assets as pension payments
are made.
|
3.
|
|
PENSION AND OTHER POSTRETIREMENT BENEFITS
|
2002
|
2001
|
2000
|
||||||||||
Pensions
|
||||||||||||
Service cost
|
$
|
107
|
|
$
|
113
|
|
$
|
106
|
|
|||
Interest cost
|
|
448
|
|
|
424
|
|
|
414
|
|
|||
Expected return on assets
|
|
(619
|
)
|
|
(603
|
)
|
|
(543
|
)
|
|||
Amortization of actuarial (gain) loss
|
|
2
|
|
|
(9
|
)
|
|
1
|
|
|||
Amortization of prior service cost
|
|
30
|
|
|
34
|
|
|
36
|
|
|||
Amortization of net transition asset
|
|
(1
|
)
|
|
(9
|
)
|
|
(8
|
)
|
|||
Special early-retirement benefits
|
|
3
|
|
|
135
|
|
||||||
Settlements/curtailments
|
|
6
|
|
|
7
|
|
||||||
|
|
|
|
|
|
|
|
|
||||
Net cost (income)
|
$
|
(24
|
)
|
$
|
85
|
|
$
|
13
|
|
|||
|
|
|
|
|
|
|
|
|
||||
Weighted-average Assumptions
|
||||||||||||
Discount rates for obligations
|
|
6.7
|
%
|
|
7.2
|
%
|
|
7.4
|
%
|
|||
Discount rates for expenses
|
|
7.2
|
%
|
|
7.4
|
%
|
|
7.4
|
%
|
|||
Assumed rates of compensation increases
|
|
3.9
|
%
|
|
4.8
|
%
|
|
4.8
|
%
|
|||
Expected long-term rates of return
|
|
9.7
|
%
|
|
9.7
|
%
|
|
9.7
|
%
|
2002
|
2001
|
2000
|
||||||||||
Health Care and Life Insurance
|
||||||||||||
Service cost
|
$
|
83
|
|
$
|
69
|
|
$
|
70
|
|
|||
Interest cost
|
|
224
|
|
|
192
|
|
|
189
|
|
|||
Expected return on assets
|
|
(44
|
)
|
|
(54
|
)
|
|
(43
|
)
|
|||
Amortization of actuarial loss
|
|
46
|
|
|
1
|
|
||||||
Amortization of prior service cost
|
|
(6
|
)
|
|
2
|
|
|
(3
|
)
|
|||
Special early-retirement benefits
|
|
1
|
|
|||||||||
Settlements/curtailments
|
|
53
|
|
|||||||||
|
|
|
|
|
|
|
|
|
||||
Net cost
|
$
|
303
|
|
$
|
263
|
|
$
|
214
|
|
|||
|
|
|
|
|
|
|
|
|
||||
Weighted-average Assumptions
|
||||||||||||
Discount rates for obligations
|
|
6.75
|
%
|
|
7.25
|
%
|
|
7.74
|
%
|
|||
Discount rates for expenses
|
|
7.25
|
%
|
|
7.74
|
%
|
|
7.75
|
%
|
|||
Expected long-term rates of return
|
|
9.7
|
%
|
|
9.7
|
%
|
|
9.7
|
%
|
Pensions
|
Health Care and
Life Insurance |
|||||||||||||||
2002
|
2001
|
2002
|
2001
|
|||||||||||||
Change in benefit obligations
|
||||||||||||||||
Beginning of year balance
|
$
|
(6,440
|
)
|
$
|
(5,873
|
)
|
$
|
(3,114
|
)
|
$
|
(2,612
|
)
|
||||
Service cost
|
|
(107
|
)
|
|
(113
|
)
|
|
(83
|
)
|
|
(69
|
)
|
||||
Interest cost
|
|
(448
|
)
|
|
(424
|
)
|
|
(224
|
)
|
|
(192
|
)
|
||||
Actuarial loss
|
|
(293
|
)
|
|
(274
|
)
|
|
(882
|
)
|
|
(361
|
)
|
||||
Benefits paid
|
|
474
|
|
|
391
|
|
|
195
|
|
|
173
|
|
||||
Settlements/curtailments
|
|
4
|
|
|
3
|
|
|
(53
|
)
|
|||||||
Special early-retirement benefits
|
|
(3
|
)
|
|
(135
|
)
|
|
(1
|
)
|
|||||||
Foreign exchange and other
|
|
(27
|
)
|
|
(15
|
)
|
|
1
|
|
|||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||
End of year balance
|
|
(6,840
|
)
|
|
(6,440
|
)
|
|
(4,108
|
)
|
|
(3,114
|
)
|
||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||
Change in plan assets (fair value)
|
||||||||||||||||
Beginning of year balance
|
|
5,951
|
|
|
7,646
|
|
|
451
|
|
|
552
|
|
||||
Actual return on plan assets
|
|
(481
|
)
|
|
(1,318
|
)
|
|
(41
|
)
|
|
(101
|
)
|
||||
Employer contribution
|
|
33
|
|
|
21
|
|
|
195
|
|
|
173
|
|
||||
Benefits paid
|
|
(474
|
)
|
|
(391
|
)
|
|
(195
|
)
|
|
(173
|
)
|
||||
Foreign exchange and other
|
|
(5
|
)
|
|
(7
|
)
|
||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||
End of year balance
|
|
5,024
|
|
|
5,951
|
|
|
410
|
|
|
451
|
|
||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||
Plan obligation more than plan assets
|
|
(1,816
|
)
|
|
(489
|
)
|
|
(3,698
|
)
|
|
(2,663
|
)
|
||||
Unrecognized actuarial loss
|
|
1,975
|
|
|
593
|
|
|
1,518
|
|
|
598
|
|
||||
Unrecognized prior service (credit) cost
|
|
90
|
|
|
118
|
|
|
(1
|
)
|
|
(8
|
)
|
||||
Remaining unrecognized transition liability (asset)
|
|
1
|
|
|
(1
|
)
|
||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||
Net amount recognized in the balance sheet
|
$
|
250
|
|
$
|
221
|
|
$
|
(2,181
|
)
|
$
|
(2,073
|
)
|
||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||
Amount recognized in balance sheet
|
||||||||||||||||
Prepaid benefit cost
|
$
|
50
|
|
$
|
652
|
|
||||||||||
Accrued benefit liability
|
|
(1,529
|
)
|
|
(473
|
)
|
$
|
(2,181
|
)
|
$
|
(2,073
|
)
|
||||
Intangible asset
|
|
87
|
|
|
20
|
|
||||||||||
Accumulated pretax charge to other comprehensive income
|
|
1,642
|
|
|
22
|
|
||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||
Net amount recognized
|
$
|
250
|
|
$
|
221
|
|
$
|
(2,181
|
)
|
$
|
(2,073
|
)
|
||||
|
|
|
|
|
|
|
|
|
|
|
|
2002
|
2001
|
2000
|
||||||||||
Current:
|
||||||||||||
United States:
|
||||||||||||
Federal
|
$
|
145
|
|
$
|
96
|
|
$
|
264
|
|
|||
State
|
|
1
|
|
|
8
|
|
|
26
|
|
|||
Foreign
|
|
109
|
|
|
112
|
|
|
142
|
|
|||
|
|
|
|
|
|
|
|
|
||||
Total current
|
|
255
|
|
|
216
|
|
|
432
|
|
|||
|
|
|
|
|
|
|
|
|
||||
Deferred:
|
||||||||||||
United States:
|
||||||||||||
Federal
|
|
6
|
|
|
(171
|
)
|
|
(118
|
)
|
|||
State
|
|
2
|
|
|
(17
|
)
|
|
(14
|
)
|
|||
Foreign
|
|
(5
|
)
|
|
(10
|
)
|
|
(6
|
)
|
|||
|
|
|
|
|
|
|
|
|
||||
Total deferred
|
|
3
|
|
|
(198
|
)
|
|
(138
|
)
|
|||
|
|
|
|
|
|
|
|
|
||||
Provision for income taxes
|
$
|
258
|
|
$
|
18
|
|
$
|
294
|
|
|||
|
|
|
|
|
|
|
|
|
2002
|
2001
|
2000
|
||||||||||
United States federal income tax provision (credit) at a statutory rate of 35 percent
|
$
|
211
|
|
$
|
(9
|
)
|
$
|
272
|
|
|||
Increase (decrease) resulting from:
|
||||||||||||
State and local income taxes, net of federal income tax benefit
|
|
2
|
|
|
(6
|
)
|
|
8
|
|
|||
Taxes on foreign activities
|
|
(1
|
)
|
|
28
|
|
|
13
|
|
|||
Benefit of Foreign Sales Corporation
|
|
(6
|
)
|
|
(8
|
)
|
||||||
Goodwill amortization
|
|
10
|
|
|
11
|
|
|
9
|
|
|||
Nondeductible costs and other-net
|
|
36
|
|
|||||||||
|
|
|
|
|
|
|
|
|
||||
Provision for income taxes
|
$
|
258
|
|
$
|
18
|
|
$
|
294
|
|
|||
|
|
|
|
|
|
|
|
|
2002
|
2001
|
||||||||||||
Deferred
Tax Assets |
Deferred
Tax Liabilities |
Deferred
Tax Assets |
Deferred
Tax Liabilities |
||||||||||
Accrual for retirement and postemployment benefits
|
$
|
721
|
|
$
|
692
|
||||||||
Minimum pension liability adjustment
|
|
612
|
|
|
8
|
||||||||
Accrual for sales allowances
|
|
273
|
|
|
285
|
||||||||
Tax over book depreciation
|
$
|
221
|
$
|
170
|
|||||||||
Deferred lease income
|
|
155
|
|
145
|
|||||||||
Deferred installment sales income
|
|
106
|
|||||||||||
Allowance for doubtful receivables
|
|
75
|
|
|
63
|
||||||||
Accrual for vacation pay
|
|
54
|
|
|
51
|
||||||||
Tax loss and tax credit carry forwards
|
|
47
|
|
|
47
|
||||||||
Unrealized loss on derivatives
|
|
25
|
|
|
39
|
||||||||
Other items
|
|
89
|
|
|
49
|
|
161
|
|
55
|
||||
Less valuation allowance
|
|
(5
|
)
|
||||||||||
|
|
|
|
|
|
|
|
|
|||||
Deferred income tax assets and liabilities
|
$
|
1,891
|
|
$
|
425
|
$
|
1,346
|
$
|
476
|
||||
|
|
|
|
|
|
|
|
|
2002
|
2001
|
2000
|
|||||||
Other income
|
|||||||||
Gains from sales of retail notes and leases*
|
$
|
81
|
$
|
32
|
$
|
24
|
|||
Securitization and servicing fee income
|
|
50
|
|
30
|
|
31
|
|||
Revenues from services
|
|
51
|
|
52
|
|
40
|
|||
Investment income
|
|
12
|
|
12
|
|
18
|
|||
Other**
|
|
75
|
|
59
|
|
60
|
|||
|
|
|
|
|
|
||||
Total
|
$
|
269
|
$
|
185
|
$
|
173
|
|||
|
|
|
|
|
|
||||
Other operating expenses
|
|||||||||
Depreciation of equipment on operating leases
|
$
|
316
|
$
|
317
|
$
|
280
|
|||
Cost of services
|
|
31
|
|
40
|
|
36
|
|||
Other***
|
|
63
|
|
36
|
|
3
|
|||
|
|
|
|
|
|
||||
Total
|
$
|
410
|
$
|
393
|
$
|
319
|
|||
|
|
|
|
|
|
*
|
|
Includes securitizations and other sales of retail notes and leases.
|
**
|
|
Includes fire insurance settlements in 2002.
|
***
|
|
Includes Argentine peso devaluation losses in 2002.
|
Operations
|
Year Ended October
|
||||||||||
2002
|
2001
|
2000
|
|||||||||
Sales
|
$
|
1,605
|
|
$
|
1,667
|
|
$
|
1,233
|
|||
Net income (loss)
|
|
(38
|
)
|
|
(32
|
)
|
|
19
|
|||
Deere & Companys equity in net income (loss)
|
|
(25
|
)
|
|
(22
|
)
|
|
2
|
|||
Financial Position
|
October 31
|
||||||||||
2002
|
2001
|
||||||||||
Total assets
|
$
|
1,265
|
|
$
|
1,369
|
||||||
Total external borrowings
|
|
193
|
|
|
221
|
||||||
Total net assets
|
|
449
|
|
|
461
|
||||||
Deere & Companys share of the net assets
|
|
181
|
|
|
198
|
Amortized Cost or Cost
|
Gross Unrealized Gains
|
Gross Unrealized Losses
|
Fair Value
|
|||||||||
October 31, 2002
|
||||||||||||
Equity securities
|
$
|
18
|
$
|
2
|
$
|
16
|
||||||
U.S. government and agencies
|
|
49
|
$
|
3
|
|
52
|
||||||
Corporate
|
|
63
|
|
3
|
|
66
|
||||||
Mortgage-backed securities
|
|
53
|
|
2
|
|
55
|
||||||
|
|
|
|
|
|
|
|
|||||
Marketable securities
|
$
|
183
|
$
|
8
|
$
|
2
|
$
|
189
|
||||
|
|
|
|
|
|
|
|
|||||
October 31, 2001
|
||||||||||||
Equity securities
|
$
|
12
|
$
|
1
|
$
|
1
|
$
|
12
|
||||
U.S. government and agencies
|
|
26
|
|
1
|
|
27
|
||||||
Corporate
|
|
81
|
|
4
|
|
85
|
||||||
Mortgage-backed securities
|
|
50
|
|
2
|
|
52
|
||||||
|
|
|
|
|
|
|
|
|||||
Marketable securities
|
$
|
169
|
$
|
8
|
$
|
1
|
$
|
176
|
||||
|
|
|
|
|
|
|
|
Amortized Cost
|
Fair Value
|
|||||
Due in one year or less
|
$
|
17
|
$
|
17
|
||
Due after one through five years
|
|
70
|
|
74
|
||
Due after five through 10 years
|
|
44
|
|
46
|
||
Due after 10 years
|
|
34
|
|
36
|
||
|
|
|
|
|||
Debt securities
|
$
|
165
|
$
|
173
|
||
|
|
|
|
2002
|
2001
|
||||||
Trade accounts and notes:
|
|||||||
Agricultural
|
$
|
1,697
|
$
|
1,767
|
|
||
Commercial and consumer
|
|
760
|
|
892
|
*
|
||
Construction and forestry
|
|
266
|
|
252
|
*
|
||
Other
|
|
11
|
|
12
|
|
||
|
|
|
|
|
|||
Trade accounts and notes receivablenet
|
$
|
2,734
|
$
|
2,923
|
|
||
|
|
|
|
|
*
|
|
Restated due to transfer of production of skid-steer loaders from commercial and consumer to construction and forestry (see Note 27).
|
2002
|
2001
|
|||||
Retail notes:
|
||||||
Equipment
|
||||||
Agricultural
|
$
|
4,292
|
$
|
4,711
|
||
Commercial and consumer
|
|
914
|
|
786
|
||
Construction and forestry
|
|
1,550
|
|
1,686
|
||
Recreational products
|
|
166
|
|
245
|
||
|
|
|
|
|||
Total
|
|
6,922
|
|
7,428
|
||
Wholesale notes
|
|
950
|
|
927
|
||
Revolving charge accounts
|
|
928
|
|
845
|
||
Financing leases
|
|
751
|
|
774
|
||
Operating loans
|
|
563
|
|
502
|
||
|
|
|
|
|||
Total financing receivables
|
|
10,114
|
|
10,476
|
||
|
|
|
|
|||
Less:
|
||||||
Unearned finance income:
|
||||||
Equipment notes
|
|
754
|
|
950
|
||
Recreational product notes
|
|
51
|
|
81
|
||
Financing leases
|
|
105
|
|
120
|
||
|
|
|
|
|||
Total
|
|
910
|
|
1,151
|
||
|
|
|
|
|||
Allowance for doubtful receivables
|
|
136
|
|
126
|
||
|
|
|
|
|||
Financing receivablesnet
|
$
|
9,068
|
$
|
9,199
|
||
|
|
|
|
2002
|
2001
|
|||||
Due in months:
|
||||||
012
|
$
|
4,949
|
$
|
4,474
|
||
1324
|
|
1,994
|
|
2,531
|
||
2536
|
|
1,430
|
|
1,615
|
||
3748
|
|
927
|
|
1,053
|
||
4960
|
|
541
|
|
567
|
||
Thereafter
|
|
273
|
|
236
|
||
|
|
|
|
|||
Total
|
$
|
10,114
|
$
|
10,476
|
||
|
|
|
|
2002
|
2001
|
2000
|
||||||||||
Balance, beginning of the year
|
$
|
126
|
|
$
|
106
|
|
$
|
93
|
|
|||
Provision charged to operations
|
|
156
|
|
|
103
|
|
|
64
|
|
|||
Amounts written off
|
|
(128
|
)
|
|
(73
|
)
|
|
(44
|
)
|
|||
Transfers primarily related to retail note sales
|
|
(18
|
)
|
|
(10
|
)
|
|
(7
|
)
|
|||
|
|
|
|
|
|
|
|
|
||||
Balance, end of the year
|
$
|
136
|
|
$
|
126
|
|
$
|
106
|
|
|||
|
|
|
|
|
|
|
|
|
2002
|
2001
|
|||||
Proceeds from new securitizations
|
$
|
2,870
|
$
|
995
|
||
Servicing fees received
|
|
28
|
|
19
|
||
Other cash flows received
|
|
103
|
|
53
|
2002
|
2001
|
|||||||
Retail Note Securitizations
|
||||||||
Carrying amount/fair value of retained interests
|
$
|
107
|
|
$
|
92
|
|
||
Weighted-average life (in months)
|
|
15
|
|
|
13
|
|
||
Prepayment speed assumption (annual rate)
|
|
19
|
%
|
|
19
|
%
|
||
Impact on fair value of 10% adverse change
|
$
|
.8
|
|
$
|
.3
|
|
||
Impact on fair value of 20% adverse change
|
$
|
1.9
|
|
$
|
.6
|
|
||
Expected credit losses (annual rate)
|
|
.39
|
%
|
|
.39
|
%
|
||
Impact on fair value of 10% adverse change
|
$
|
1.1
|
|
$
|
.6
|
|
||
Impact on fair value of 20% adverse change
|
$
|
2.2
|
|
$
|
1.2
|
|
||
Residual cash flows discount rate (annual)
|
|
13
|
%
|
|
13
|
%
|
||
Impact on fair value of 10% adverse change
|
$
|
2.5
|
|
$
|
2.2
|
|
||
Impact on fair value of 20% adverse change
|
$
|
4.9
|
|
$
|
4.2
|
|
Principal Outstanding
|
Principal 60 Days or More Past Due
|
Net Credit Losses
|
|||||||
2002
|
|||||||||
Owned
|
$
|
6,066
|
$
|
18
|
$
|
27
|
|||
Securitized
|
|
2,497
|
|
14
|
|
10
|
|||
|
|
|
|
|
|
||||
Managed
|
$
|
8,563
|
$
|
32
|
$
|
37
|
|||
|
|
|
|
|
|
||||
2001
|
|||||||||
Owned
|
$
|
6,122
|
$
|
23
|
$
|
32
|
|||
Securitized
|
|
1,494
|
|
13
|
|
10
|
|||
|
|
|
|
|
|
||||
Managed
|
$
|
7,616
|
$
|
36
|
$
|
42
|
|||
|
|
|
|
|
|
Retail Notes Securitized In
|
||||
2002
|
2001
|
|||
Actual and Projected Losses (%) as of Year End:
|
||||
2002
|
.61%
|
.57%
|
||
2001
|
.61%
|
2002
|
2001
|
|||||
Taxes receivable
|
$
|
232
|
$
|
206
|
||
Receivables relating to securitizations
|
|
92
|
|
81
|
||
Health care premiums receivable
|
|
11
|
|
13
|
||
Other
|
|
91
|
|
89
|
||
|
|
|
|
|||
Other receivables
|
$
|
426
|
$
|
389
|
||
|
|
|
|
2002
|
2001
|
|||||
Raw materials and supplies
|
$
|
515
|
$
|
516
|
||
Work-in-process
|
|
361
|
|
376
|
||
Finished machines and parts
|
|
1,444
|
|
1,618
|
||
|
|
|
|
|||
Total FIFO value
|
|
2,320
|
|
2,510
|
||
Adjustment to LIFO value
|
|
948
|
|
1,004
|
||
|
|
|
|
|||
Inventories
|
$
|
1,372
|
$
|
1,506
|
||
|
|
|
|
2002
|
2001
|
|||||
Land
|
$
|
62
|
$
|
59
|
||
Buildings and building equipment
|
|
1,254
|
|
1,238
|
||
Machinery and equipment
|
|
2,470
|
|
2,458
|
||
Dies, patterns, tools, etc.
|
|
821
|
|
765
|
||
All other
|
|
692
|
|
686
|
||
Construction in progress
|
|
196
|
|
182
|
||
|
|
|
|
|||
Total at cost
|
|
5,495
|
|
5,388
|
||
Less accumulated depreciation
|
|
3,497
|
|
3,336
|
||
|
|
|
|
|||
Property and equipmentnet
|
$
|
1,998
|
$
|
2,052
|
||
|
|
|
|
2002
|
2001
|
|||||
Unamortized goodwill
|
$
|
804
|
$
|
846
|
||
Intangible asset related to minimum pension liability
|
|
87
|
|
20
|
||
Other
|
|
4
|
|
8
|
||
|
|
|
|
|||
Intangible assets
|
$
|
895
|
$
|
874
|
||
|
|
|
|
2002
|
2001
|
|||||
Equipment Operations
|
||||||
Commercial paper
|
$
|
313
|
$
|
557
|
||
Notes payable to banks
|
|
69
|
|
143
|
||
Long-term borrowings due within one year
|
|
16
|
|
73
|
||
|
|
|
|
|||
Total
|
|
398
|
|
773
|
||
|
|
|
|
|||
Financial Services
|
||||||
Commercial paper
|
|
1,531
|
|
2,672
|
||
Notes payable to banks
|
|
37
|
|
24
|
||
Long-term borrowings due within one year
|
|
2,471
|
|
2,729
|
||
|
|
|
|
|||
Total
|
|
4,039
|
|
5,425
|
||
|
|
|
|
|||
Short-term borrowings
|
$
|
4,437
|
$
|
6,198
|
||
|
|
|
|
2002
|
2001
|
|||||
Equipment Operations
|
||||||
Accounts payable:
|
||||||
Trade payables
|
$1,004
|
|
$ 955
|
|
||
Dividends payable
|
53
|
|
52
|
|
||
Other
|
48
|
|
53
|
|
||
Accrued expenses:
|
||||||
Employee benefits
|
282
|
|
241
|
|
||
Dealer commissions
|
225
|
|
221
|
|
||
Special items (Note 2)
|
42
|
|
74
|
|
||
Other
|
1,147
|
*
|
1,080
|
*
|
||
|
|
|
|
|||
Total
|
2,801
|
|
2,676
|
|
||
|
|
|
|
|||
Financial Services
|
||||||
Accounts payable:
|
||||||
Deposits withheld from dealers and merchants
|
153
|
|
148
|
|
||
Other
|
260
|
|
357
|
|
||
Accrued expenses:
|
||||||
Interest payable
|
65
|
|
49
|
|
||
Other
|
177
|
|
221
|
|
||
|
|
|
|
|||
Total
|
655
|
|
775
|
|
||
|
|
|
|
|||
Eliminations
|
314
|
*
|
354
|
*
|
||
|
|
|
|
|||
Accounts payable and accrued expenses
|
$3,142
|
|
$3,097
|
|
||
|
|
|
|
*
|
|
Includes trade receivable valuation accounts of $314 million and $354 million at October 31, 2002 and 2001, respectively, reclassified as accrued expenses by
the Equipment Operations as a result of trade receivable sold to Financial Services (see Note 1).
|
2002
|
2001
|
|||||||
Equipment Operations**
|
||||||||
Notes and debentures:
|
||||||||
Medium-term notes due 2005-2006:
|
||||||||
Average interest rates of 9.6%2002 and 2001
|
$
|
45
|
|
$
|
45
|
|
||
6.55% notes due 2004
|
|
250
|
|
|
250
|
|
||
5
7
/
8
% U.S. dollar notes due 2006: ($250 principal) $170 swapped to Euro and Swedish Krona and average variable interest rates of 3.7%2002, 4.2%2001
|
|
260
|
*
|
|
256
|
*
|
||
7.85% debentures due 2010
|
|
500
|
|
|
500
|
|
||
6.95% notes due 2014: ($700 principal) Swapped to 2.8%2002
|
|
769
|
*
|
|||||
8.95% debentures due 2019
|
|
200
|
|
|
200
|
|
||
8
1
/
2
% debentures due 2022
|
|
200
|
|
|
200
|
|
||
6.55% debentures due 2028
|
|
200
|
|
|
200
|
|
||
8.10% debentures due 2030
|
|
250
|
|
|
250
|
|
||
7.125% notes due 2031
|
|
300
|
|
|
300
|
|
||
Other notes
|
|
15
|
|
|
9
|
|
||
|
|
|
|
|
|
|||
Total
|
|
2,989
|
|
|
2,210
|
|
||
|
|
|
|
|
|
|||
Financial Services**
|
||||||||
Notes and debentures:
|
||||||||
Medium-term notes due 2004-2007:
(principal $2,6162002, $2,7782001) Average interest rates of 2.8%2002, 4.6%2001 |
|
2,628
|
*
|
|
2,796
|
*
|
||
Floating rate notes due 2003:
Interest rate of 2.7%2001 |
|
200
|
|
|||||
6.125% U.S. dollar notes due 2003: ($150 principal) Swapped to Canadian dollars and variable interest rate of
4.2%2001
|
|
157
|
*
|
|||||
5.125% debentures due in 2006: ($600 principal) Swapped to variable interest rates of 2.5%2002,
3.0%2001
|
|
625
|
*
|
|
601
|
*
|
||
4.5% notes due 2007: ($500 principal) Swapped $450 million to variable interest rate of 2.5%2002
|
|
481
|
*
|
|||||
6% notes due 2009: ($300 principal) Swapped to variable interest rates of 2.0%2002, 3.8%2001
|
|
329
|
*
|
|
316
|
*
|
||
7% notes due 2012: ($1,500 principal) Swapped to variable interest rate of 2.8%2002
|
|
1,662
|
*
|
|||||
Other notes
|
|
86
|
|
|
131
|
|
||
|
|
|
|
|
|
|||
Total notes and debentures
|
|
5,811
|
|
|
4,201
|
|
||
Subordinated debt:
|
||||||||
8
5
/
8
% subordinated debentures due 2019
|
|
150
|
|
|
150
|
|
||
|
|
|
|
|
|
|||
Total
|
|
5,961
|
|
|
4,351
|
|
||
|
|
|
|
|
|
|||
Long-term borrowings
|
$
|
8,950
|
|
$
|
6,561
|
|
||
|
|
|
|
|
|
*
|
|
Includes fair value adjustments related to interest rate swaps.
|
**
|
|
All interest rates are as of year end.
|
Number of
Shares Issued |
Amount
|
||||
Balance at October 31, 1999
|
265.8
|
$
|
1,850
|
||
Acquisition of a business
|
.2
|
|
10
|
||
Other
|
|
4
|
|||
|
|
|
|||
Balance at October 31, 2000
|
266.0
|
|
1,864
|
||
Acquisition of a business
|
2.2
|
|
81
|
||
Other
|
|
4
|
|||
|
|
|
|||
Balance at October 31, 2001
|
268.2
|
|
1,949
|
||
Other
|
|
8
|
|||
|
|
|
|||
Balance at October 31, 2002
|
268.2
|
$
|
1,957
|
||
|
|
|
2002
|
2001
|
2000
|
||||||||
Net income (loss)
|
$
|
319.2
|
$
|
(64.0
|
)
|
$
|
485.5
|
|||
Average shares outstanding
|
|
238.2
|
|
235.0
|
|
|
234.3
|
|||
Basic net income (loss) per share
|
$
|
1.34
|
$
|
(.27
|
)
|
$
|
2.07
|
|||
|
|
|
|
|
|
|
||||
Average shares outstanding
|
|
238.2
|
|
235.0
|
|
|
234.3
|
|||
Effect of dilutive stock options
|
|
2.7
|
|
1.8
|
|
|
1.7
|
|||
|
|
|
|
|
|
|
||||
Total potential shares outstanding
|
|
240.9
|
|
236.8
|
|
|
236.0
|
|||
|
|
|
|
|
|
|
||||
Diluted net income (loss) per share
|
$
|
1.33
|
$
|
(.27
|
)
|
$
|
2.06
|
|||
|
|
|
|
|
|
|
2002
|
2001
|
2000
|
||||||||
Net income (loss) (in millions)
|
||||||||||
As reported
|
$
|
319
|
$
|
(64
|
)
|
$
|
486
|
|||
Pro forma
|
$
|
284
|
$
|
(96
|
)
|
$
|
446
|
|||
Net income (loss) per share
|
||||||||||
As reportedbasic
|
$
|
1.34
|
$
|
(.27
|
)
|
$
|
2.07
|
|||
Pro formabasic
|
$
|
1.19
|
$
|
(.41
|
)
|
$
|
1.91
|
|||
As reporteddiluted
|
$
|
1.33
|
$
|
(.27
|
)
|
$
|
2.06
|
|||
Pro formadiluted
|
$
|
1.19
|
$
|
(.41
|
)
|
$
|
1.89
|
|||
Black-Scholes assumptions*
|
||||||||||
Risk-free interest rate
|
|
3.6%
|
|
5.4%
|
|
|
6.2%
|
|||
Dividend yield
|
|
2.1%
|
|
2.1%
|
|
|
2.1%
|
|||
Stock volatility
|
|
36.0%
|
|
33.2%
|
|
|
30.4%
|
|||
Expected option life in years
|
|
3.7
|
|
4.1
|
|
|
4.5
|
*
|
|
Weighted-averages
|
2002
|
2001
|
2000
|
||||||||||||||||
Shares
|
Exercise Price*
|
Shares
|
Exercise Price*
|
Shares
|
Exercise Price*
|
|||||||||||||
Outstanding at beginning of year
|
20.5
|
|
$
|
40.56
|
16.7
|
|
$
|
39.77
|
11.9
|
|
$
|
38.59
|
||||||
Grantedat market
|
4.3
|
|
|
42.30
|
4.5
|
|
|
41.98
|
5.5
|
|
|
41.29
|
||||||
Exercised
|
(1.6
|
)
|
|
30.35
|
(.6
|
)
|
|
28.94
|
(.6
|
)
|
|
28.75
|
||||||
Expired or forfeited
|
(.3
|
)
|
|
41.82
|
(.1
|
)
|
|
42.80
|
(.1
|
)
|
|
42.50
|
||||||
|
|
|
|
|
|
|||||||||||||
Outstanding at end of year
|
22.9
|
|
|
41.58
|
20.5
|
|
|
40.56
|
16.7
|
|
|
39.77
|
||||||
Exercisable at end of year
|
12.9
|
|
|
39.28
|
14.8
|
|
|
38.28
|
10.1
|
|
|
36.14
|
*
|
|
Weighted-averages
|
Options Outstanding
|
Options Exercisable
|
|||||||||||
Range of
Exercise Prices |
Shares
|
Remaining Contractual Life (yrs)*
|
Exercise Price*
|
Shares
|
Exercise Price*
|
|||||||
$13.63$23.56
|
.8
|
1.72
|
$
|
21.27
|
.8
|
$
|
21.27
|
|||||
$28.39$34.19
|
4.3
|
4.97
|
|
32.74
|
4.3
|
|
32.74
|
|||||
$35.00$41.47
|
5.3
|
7.08
|
|
41.17
|
3.6
|
|
41.25
|
|||||
$42.07$47.36
|
9.6
|
8.04
|
|
42.28
|
2.6
|
|
42.47
|
|||||
$50.97$56.50
|
2.4
|
5.40
|
|
54.76
|
1.6
|
|
56.50
|
|||||
$82.19
|
.5
|
5.08
|
|
82.19
|
||||||||
|
|
|||||||||||
Total
|
22.9
|
12.9
|
*
|
|
Weighted averages
|
Before Tax Amount
|
Tax (Expense) Credit
|
After Tax Amount
|
||||||||||
2000
|
||||||||||||
Minimum pension liability adjustment
|
$
|
16
|
|
$
|
(5
|
)
|
$
|
11
|
|
|||
|
|
|
|
|
|
|
|
|
||||
Cumulative translation adjustment
|
|
(108
|
)
|
|
(7
|
)
|
|
(115
|
)
|
|||
|
|
|
|
|
|
|
|
|
||||
Unrealized loss on investments:
|
||||||||||||
Holding loss
|
|
(1
|
)
|
|
(1
|
)
|
||||||
Reclassification of realized gain to net income
|
|
(7
|
)
|
|
3
|
|
|
(4
|
)
|
|||
|
|
|
|
|
|
|
|
|
||||
Net unrealized loss
|
|
(8
|
)
|
|
3
|
|
|
(5
|
)
|
|||
|
|
|
|
|
|
|
|
|
||||
Total other comprehensive loss
|
$
|
(100
|
)
|
$
|
(9
|
)
|
$
|
(109
|
)
|
|||
|
|
|
|
|
|
|
|
|
||||
2001
|
||||||||||||
Minimum pension liability adjustment
|
$
|
(11
|
)
|
$
|
3
|
|
$
|
(8
|
)
|
|||
|
|
|
|
|
|
|
|
|
||||
Cumulative translation adjustment
|
|
(63
|
)
|
|
(63
|
)
|
||||||
|
|
|
|
|
|
|
|
|
||||
Unrealized holding gain and net gain on investments
|
|
6
|
|
|
(2
|
)
|
|
4
|
|
|||
|
|
|
|
|
|
|
|
|
||||
Unrealized loss on derivatives:
|
||||||||||||
Hedging loss
|
|
(155
|
)
|
|
55
|
|
|
(100
|
)
|
|||
Reclassification of realized loss to net income
|
|
43
|
|
|
(15
|
)
|
|
28
|
|
|||
|
|
|
|
|
|
|
|
|
||||
Net unrealized loss
|
|
(112
|
)
|
|
40
|
|
|
(72
|
)
|
|||
|
|
|
|
|
|
|
|
|
||||
Total other comprehensive loss
|
$
|
(180
|
)
|
$
|
41
|
|
$
|
(139
|
)
|
|||
|
|
|
|
|
|
|
|
|
||||
2002
|
||||||||||||
Minimum pension liability adjustment
|
$
|
(1,620
|
)
|
$
|
604
|
|
$
|
(1,016
|
)
|
|||
|
|
|
|
|
|
|
|
|
||||
Cumulative translation adjustment
|
|
(8
|
)
|
|
(8
|
)
|
||||||
|
|
|
|
|
|
|
|
|
||||
Unrealized holding gain and net gain on investments
|
|
2
|
|
|
(1
|
)
|
|
1
|
|
|||
|
|
|
|
|
|
|
|
|
||||
Unrealized loss on derivatives:
|
||||||||||||
Hedging loss
|
|
(61
|
)
|
|
21
|
|
|
(40
|
)
|
|||
Reclassification of realized loss to net income
|
|
99
|
|
|
(34
|
)
|
|
65
|
|
|||
|
|
|
|
|
|
|
|
|
||||
Net unrealized loss
|
|
38
|
|
|
(13
|
)
|
|
25
|
|
|||
|
|
|
|
|
|
|
|
|
||||
Total other comprehensive loss
|
$
|
(1,588
|
)
|
$
|
590
|
|
$
|
(998
|
)
|
|||
|
|
|
|
|
|
|
|
|
2002
|
2001
|
|||||||||||
Carrying Value
|
Fair Value
|
Carrying Value
|
Fair Value
|
|||||||||
Financing receivables
|
$
|
9,068
|
$
|
9,111
|
$
|
9,199
|
$
|
9,226
|
||||
|
|
|
|
|
|
|
|
|||||
Long-term borrowings
|
||||||||||||
Equipment Operations
|
$
|
2,989
|
$
|
3,319
|
$
|
2,210
|
$
|
2,404
|
||||
Financial Services
|
|
5,961
|
|
6,081
|
|
4,351
|
|
4,355
|
||||
|
|
|
|
|
|
|
|
|||||
Total
|
$
|
8,950
|
$
|
9,400
|
$
|
6,561
|
$
|
6,759
|
||||
|
|
|
|
|
|
|
|
2002
|
2001
|
2000
|
||||||||||
Interest:
|
||||||||||||
Equipment Operations
|
$
|
312
|
*
|
$
|
220
|
|
$
|
152
|
|
|||
Financial Services
|
|
413
|
|
|
540
|
|
|
489
|
|
|||
Intercompany eliminations
|
|
(187
|
)*
|
|
(34
|
)
|
|
(23
|
)
|
|||
|
|
|
|
|
|
|
|
|
||||
Consolidated
|
$
|
538
|
|
$
|
726
|
|
$
|
618
|
|
|||
|
|
|
|
|
|
|
|
|
||||
Income Taxes:
|
||||||||||||
Equipment Operations
|
$
|
188
|
|
$
|
119
|
|
$
|
393
|
|
|||
Financial Services
|
|
131
|
|
|
61
|
|
|
77
|
|
|||
Intercompany eliminations
|
|
(118
|
)
|
|
(48
|
)
|
|
(57
|
)
|
|||
|
|
|
|
|
|
|
|
|
||||
Consolidated
|
$
|
201
|
|
$
|
132
|
|
$
|
413
|
|
|||
|
|
|
|
|
|
|
|
|
*
|
|
Includes interest compensation to Financial Services for financing trade receivables.
|
OPERATING SEGMENTS
|
2002
|
2001
|
2000
|
|||||||||
Net sales and revenues
|
||||||||||||
Unaffiliated customers:
|
||||||||||||
Agricultural equipment net sales
|
$
|
6,738
|
|
$
|
6,269
|
|
$
|
5,934
|
|
|||
Commercial and consumer equipment net sales**
|
|
2,712
|
|
|
2,527
|
|
|
2,774
|
|
|||
Construction and forestry net sales**
|
|
2,199
|
|
|
2,226
|
|
|
2,395
|
|
|||
Other net sales
|
|
54
|
|
|
55
|
|
|
66
|
|
|||
|
|
|
|
|
|
|
|
|
||||
Total net sales
|
|
11,703
|
|
|
11,077
|
|
|
11,169
|
|
|||
Credit revenues
|
|
1,426
|
|
|
1,439
|
|
|
1,323
|
|
|||
Other revenues
|
|
818
|
|
|
777
|
|
|
645
|
|
|||
|
|
|
|
|
|
|
|
|
||||
Total
|
$
|
13,947
|
|
$
|
13,293
|
|
$
|
13,137
|
|
|||
|
|
|
|
|
|
|
|
|
||||
** See following ** note.
|
||||||||||||
Operating profit (loss)*
|
||||||||||||
Agricultural equipment
|
$
|
439
|
|
$
|
257
|
|
$
|
400
|
|
|||
Commercial and consumer equipment**
|
|
79
|
|
|
(165
|
)
|
|
167
|
|
|||
Construction and forestry**
|
|
(75
|
)
|
|
(83
|
)
|
|
183
|
|
|||
Credit***
|
|
386
|
|
|
274
|
|
|
254
|
|
|||
Other***
|
|
(12
|
)
|
|
(31
|
)
|
|
(39
|
)
|
|||
|
|
|
|
|
|
|
|
|
||||
Total operating profit
|
|
817
|
|
|
252
|
|
|
965
|
|
|||
|
|
|
|
|
|
|
|
|
||||
Interest income
|
|
66
|
|
|
39
|
|
|
40
|
|
|||
Investment income
|
|
8
|
|
|||||||||
Interest expense
|
|
(223
|
)
|
|
(268
|
)
|
|
(182
|
)
|
|||
Foreign exchange loss
|
|
(17
|
)
|
|
(15
|
)
|
|
(8
|
)
|
|||
Corporate expensesnet
|
|
(66
|
)
|
|
(54
|
)
|
|
(43
|
)
|
|||
Income taxes
|
|
(258
|
)
|
|
(18
|
)
|
|
(294
|
)
|
|||
|
|
|
|
|
|
|
|
|
||||
Total
|
|
(498
|
)
|
|
(316
|
)
|
|
(479
|
)
|
|||
|
|
|
|
|
|
|
|
|
||||
Net income (loss)
|
$
|
319
|
|
$
|
(64
|
)
|
$
|
486
|
|
|||
|
|
|
|
|
|
|
|
|
*
|
|
In 2002, operating profit (loss) of the agricultural equipment, commercial and consumer equipment, construction and forestry, credit and other segments includes
expense for special items of $12 million, $24 million, $27 million, none and $9 million, respectively, for a total of $72 million. In 2001, the expense for special items was $97 million, $160 million, $83 million, $3 million and $1 million,
respectively, for a total of $344 million (see Note 2).
|
**
|
|
Years 2001 and 2000 were restated for sales of $140 million and $192 million, operating losses of $29 million and $8 million and identifiable assets of $63
million and $160 million, respectively, for the transfer of the production of skid-steer loaders from commercial and consumer equipment to construction and forestry. Other insignificant restatements of segment information for this transfer were also
made.
|
***
|
|
Operating profit of the credit business segment includes the effect of interest expense, which is the largest element of its operating costs, and foreign
exchange gains or losses. Operating profit of the other category includes health care investment income.
|
Interest Income
|
||||||||||||
Agricultural equipment
|
$
|
7
|
|
$
|
26
|
|
$
|
39
|
|
|||
Commercial and consumer equipment
|
|
5
|
|
|
16
|
|
|
9
|
|
|||
Construction and forestry
|
|
7
|
|
|
14
|
|
|
10
|
|
|||
Credit*
|
|
948
|
|
|
869
|
|
|
791
|
|
|||
Corporate
|
|
66
|
|
|
39
|
|
|
40
|
|
|||
Intercompany*
|
|
(187
|
)
|
|
(34
|
)
|
|
(23
|
)
|
|||
|
|
|
|
|
|
|
|
|
||||
Total
|
$
|
846
|
|
$
|
930
|
|
$
|
866
|
|
|||
|
|
|
|
|
|
|
|
|
||||
* Includes interest income from
equipment operations for financing trade receivables in 2002.
|
||||||||||||
Interest expense
|
||||||||||||
Agricultural equipment*
|
$
|
94
|
|
$
|
1
|
|
$
|
1
|
|
|||
Commercial and consumer equipment*
|
|
46
|
|
|||||||||
Construction and forestry*
|
|
18
|
|
|||||||||
Credit
|
|
443
|
|
|
530
|
|
|
515
|
|
|||
Other
|
|
1
|
|
|
2
|
|
||||||
Corporate
|
|
223
|
|
|
268
|
|
|
182
|
|
|||
Intercompany*
|
|
(187
|
)
|
|
(34
|
)
|
|
(23
|
)
|
|||
|
|
|
|
|
|
|
|
|
||||
Total
|
$
|
637
|
|
$
|
766
|
|
$
|
677
|
|
|||
|
|
|
|
|
|
|
|
|
*
|
|
Includes interest compensation to credit for financing trade receivables in 2002.
|
2002
|
2001
|
2000
|
||||||||||
Operating profit
|
$
|
416
|
|
$
|
298
|
|
$
|
272
|
|
|||
Change in allowance for doubtful receivables
|
|
16
|
|
|
27
|
|
|
13
|
|
|||
|
|
|
|
|
|
|
|
|
||||
SVA income
|
$
|
432
|
|
$
|
325
|
|
$
|
285
|
|
|||
|
|
|
|
|
|
|
|
|
||||
Average equity
|
$
|
2,115
|
|
$
|
1,505
|
|
$
|
1,324
|
|
|||
Average allowance for doubtful receivables
|
|
161
|
|
|
111
|
|
|
103
|
|
|||
|
|
|
|
|
|
|
|
|
||||
SVA average equity
|
$
|
2,276
|
|
$
|
1,616
|
|
$
|
1,427
|
|
|||
|
|
|
|
|
|
|
|
|
||||
SVA return on average equity
|
|
19.0
|
%
|
|
20.1
|
%
|
|
20.0
|
%
|
2002
|
2001
|
2000
|
||||||||||
Agricultural equipment
|
$
|
(16
|
)
|
$
|
(346
|
)
|
$
|
(187
|
)
|
|||
Commercial and consumer equipment
|
|
(121
|
)
|
|
(481
|
)
|
|
(119
|
)
|
|||
Construction and forestry
|
|
(267
|
)
|
|
(312
|
)
|
|
(16
|
)
|
|||
Other equipment
|
|
(53
|
)
|
|
(69
|
)
|
|
(70
|
)
|
|||
Financial services
|
|
(5
|
)
|
|
21
|
|
|
16
|
|
|||
|
|
|
|
|
|
|
|
|
||||
Total
|
$
|
(462
|
)
|
$
|
(1,187
|
)
|
$
|
(376
|
)
|
|||
|
|
|
|
|
|
|
|
|
GEOGRAPHIC AREAS
|
2002
|
2001
|
2000
|
|||||||
Net sales and revenues
|
||||||||||
Unaffiliated customers:
|
||||||||||
United States and Canada:
|
||||||||||
Equipment operations net sales (92%)
|
$
|
8,199
|
$
|
8,124
|
|
$
|
8,272
|
|||
Financial Services revenues (89)%
|
|
1,950
|
|
1,937
|
|
|
1,731
|
|||
|
|
|
|
|
|
|
||||
Total
|
|
10,149
|
|
10,061
|
|
|
10,003
|
|||
|
|
|
|
|
|
|
||||
Overseas:
|
||||||||||
Equipment operations net sales
|
|
3,504
|
|
2,954
|
|
|
2,897
|
|||
Financial Services revenues
|
|
127
|
|
100
|
|
|
79
|
|||
|
|
|
|
|
|
|
||||
Total
|
|
3,631
|
|
3,054
|
|
|
2,976
|
|||
|
|
|
|
|
|
|
||||
Other revenues
|
|
167
|
|
178
|
|
|
158
|
|||
|
|
|
|
|
|
|
||||
Total
|
$
|
13,947
|
$
|
13,293
|
|
$
|
13,137
|
|||
|
|
|
|
|
|
|
||||
Operating profit (loss)
|
||||||||||
United States and Canada:
|
||||||||||
Equipment operations
|
$
|
170
|
$
|
(164
|
)
|
$
|
529
|
|||
Financial Services
|
|
410
|
|
283
|
|
|
265
|
|||
|
|
|
|
|
|
|
||||
Total
|
|
580
|
|
119
|
|
|
794
|
|||
|
|
|
|
|
|
|
||||
Overseas:
|
||||||||||
Equipment operations
|
|
231
|
|
118
|
|
|
164
|
|||
Financial Services
|
|
6
|
|
15
|
|
|
7
|
|||
|
|
|
|
|
|
|
||||
Total
|
|
237
|
|
133
|
|
|
171
|
|||
|
|
|
|
|
|
|
||||
Total
|
$
|
817
|
$
|
252
|
|
$
|
965
|
|||
|
|
|
|
|
|
|
||||
Property and equipment
|
||||||||||
United States
|
$
|
1,285
|
$
|
1,407
|
|
$
|
1,322
|
|||
Mexico
|
|
217
|
|
189
|
|
|
197
|
|||
Germany
|
|
192
|
|
155
|
|
|
121
|
|||
Other countries
|
|
304
|
|
301
|
|
|
272
|
|||
|
|
|
|
|
|
|
||||
Total
|
$
|
1,998
|
$
|
2,052
|
|
$
|
1,912
|
|||
|
|
|
|
|
|
|
First
Quarter
|
Second
Quarter
|
Third
Quarter
|
Fourth
Quarter
|
|||||||||||
2002
|
||||||||||||||
Net sales and revenues
|
$
|
2,522
|
|
$
|
3,987
|
$
|
3,969
|
$
|
3,469
|
|
||||
Income (loss) before income taxes
|
|
(53
|
)
|
|
240
|
|
289
|
|
127
|
|
||||
Net income (loss)
|
|
(38
|
)
|
|
142
|
|
147
|
|
68
|
|
||||
Net income (loss) per sharebasic
|
|
(.16
|
)
|
|
.60
|
|
.62
|
|
.28
|
|
||||
Net income (loss) per sharediluted
|
|
(.16
|
)
|
|
.59
|
|
.61
|
|
.28
|
|
||||
Dividends declared per share
|
|
.22
|
|
|
.22
|
|
.22
|
|
.22
|
|
||||
Dividends paid per share
|
|
.22
|
|
|
.22
|
|
.22
|
|
.22
|
|
||||
2001
|
||||||||||||||
Net sales and revenues*
|
$
|
2,705
|
|
$
|
3,809
|
$
|
3,618
|
$
|
3,161
|
|
||||
Income (loss) before income taxes
|
|
92
|
|
|
215
|
|
137
|
|
(469
|
)
|
||||
Net income (loss)
|
|
56
|
|
|
128
|
|
72
|
|
(320
|
)
|
||||
Net income (loss) per sharebasic
|
|
.24
|
|
|
.55
|
|
.30
|
|
(1.36
|
)
|
||||
Net income (loss) per sharediluted
|
|
.24
|
|
|
.54
|
|
.30
|
|
(1.36
|
)
|
||||
Dividends declared per share
|
|
.22
|
|
|
.22
|
|
.22
|
|
.22
|
|
||||
Dividends paid per share
|
|
.22
|
|
|
.22
|
|
.22
|
|
.22
|
|
*
|
|
In the fourth quarter of 2001, the company adopted EITF Issue No. 00-10, Accounting for Shipping and Handling Fees and Costs. The increases in net sales and
cost of sales in 2001 from the adoption of the new standard were $25 million in the first quarter, $33 million in the second quarter, $34 million in the third quarter, $31 million in the fourth quarter and $123 million for the year (see Note 1).
|
First
Quarter
|
Second
Quarter
|
Third
Quarter
|
Fourth Quarter
|
|||||||||
2002 Market price
|
||||||||||||
High
|
$
|
45.15
|
$
|
49.98
|
$
|
49.18
|
$
|
49.25
|
||||
Low
|
$
|
36.60
|
$
|
41.10
|
$
|
37.50
|
$
|
39.50
|
||||
2001 Market price
|
||||||||||||
High
|
$
|
47.13
|
$
|
45.96
|
$
|
42.80
|
$
|
45.00
|
||||
Low
|
$
|
34.63
|
$
|
34.45
|
$
|
36.04
|
$
|
33.50
|
EQUIPMENT OPERATIONS*
|
FINANCIAL SERVICES
|
|||||||||||||||||||||
2002
|
2001
|
2000
|
2002
|
2001
|
2000
|
|||||||||||||||||
Net Sales and Revenues
|
||||||||||||||||||||||
Net Sales
|
$
|
11,702.8
|
|
$
|
11,077.4
|
|
$
|
11,168.6
|
||||||||||||||
Finance and interest income
|
|
85.6
|
|
|
95.9
|
|
|
99.1
|
$
|
1,440.6
|
|
$
|
1,383.5
|
|
$
|
1,245.4
|
||||||
Health care premiums and fees
|
|
654.2
|
|
|
603.6
|
|
|
493.0
|
||||||||||||||
Other income
|
|
146.0
|
|
|
129.4
|
|
|
109.2
|
|
167.3
|
|
|
91.4
|
|
|
94.8
|
||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||
Total
|
|
11,934.4
|
|
|
11,302.7
|
|
|
11,376.9
|
|
2,262.1
|
|
|
2,078.5
|
|
|
1,833.2
|
||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||
Costs and Expenses
|
||||||||||||||||||||||
Cost of sales
|
|
9,608.1
|
|
|
9,391.9
|
|
|
8,952.2
|
||||||||||||||
Research and development expenses
|
|
527.8
|
|
|
590.1
|
|
|
542.1
|
||||||||||||||
Selling, administrative and general expenses
|
|
1,153.5
|
|
|
1,295.3
|
|
|
1,149.4
|
|
510.2
|
|
|
424.6
|
|
|
357.9
|
||||||
Interest expense
|
|
222.9
|
|
|
268.9
|
|
|
183.1
|
|
443.1
|
|
|
530.8
|
|
|
516.5
|
||||||
Interest compensation to Financial Services
|
|
158.1
|
|
|
.9
|
|
||||||||||||||||
Health care claims and costs
|
|
518.4
|
|
|
476.0
|
|
|
380.5
|
||||||||||||||
Other operating expenses
|
|
81.4
|
|
|
81.3
|
|
|
44.3
|
|
370.3
|
|
|
346.2
|
|
|
306.6
|
||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||
Total
|
|
11,751.8
|
|
|
11,628.4
|
|
|
10,871.1
|
|
1,842.0
|
|
|
1,777.6
|
|
|
1,561.5
|
||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||
Income (Loss) of Consolidated Group before
Income Taxes |
|
182.6
|
|
|
(325.7
|
)
|
|
505.8
|
|
420.1
|
|
|
300.9
|
|
|
271.7
|
||||||
Provision (credit) for income taxes
|
|
104.2
|
|
|
(87.9
|
)
|
|
194.7
|
|
154.1
|
|
|
105.6
|
|
|
99.1
|
||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||
Income (Loss) of Consolidated Group
|
|
78.4
|
|
|
(237.8
|
)
|
|
311.1
|
|
266.0
|
|
|
195.3
|
|
|
172.6
|
||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||
Equity in Income (Loss) for Unconsolidated
Subsidiaries and Affiliates |
||||||||||||||||||||||
Credit
|
|
243.0
|
|
|
176.8
|
|
|
161.5
|
|
(3.8
|
)
|
|
(3.3
|
)
|
|
.6
|
||||||
Other
|
|
(2.2
|
)
|
|
(3.0
|
)
|
|
12.9
|
|
.1
|
|
|||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||
Total
|
|
240.8
|
|
|
173.8
|
|
|
174.4
|
|
(3.8
|
)
|
|
(3.2
|
)
|
|
.6
|
||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||
Net Income (Loss)
|
$
|
319.2
|
|
$
|
(64.0
|
)
|
$
|
485.5
|
$
|
262.2
|
|
$
|
192.1
|
|
$
|
173.2
|
||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
*
|
|
Deere & Company with Financial Services on the equity basis.
|
|
|
The supplemental consolidating data is presented for informational purposes. The Equipment Operations (Deere & Company with Financial Services
on the Equity Basis) reflect the basis of consolidation described in Note 1 to the consolidated financial statements. The consolidated group data in the Equipment Operations income statement reflect the results of the agricultural
equipment, commercial and consumer equipment, construction and forestry and special technologies group operations. The supplemental Financial Services data represents Deere & Companys credit and health care operations.
Transactions between the Equipment Operations and Financial Services have been eliminated to arrive at the consolidated financial statements.
|
*
|
|
Deere & Company with Financial Services on the equity basis.
|
EQUIPMENT OPERATIONS*
|
FINANCIAL SERVICES
|
|||||||||||||||||||||||
2002
|
2001
|
2000
|
2002
|
2001
|
2000
|
|||||||||||||||||||
Cash Flows from Operating Activities
|
||||||||||||||||||||||||
Net income (loss)
|
$
|
319.2
|
|
$
|
(64.0
|
)
|
$
|
485.5
|
|
$
|
262.2
|
|
$
|
192.1
|
|
$
|
173.2
|
|
||||||
Adjustments to reconcile net income (loss) to net cash provided by operating activities:
|
||||||||||||||||||||||||
Provision for doubtful receivables
|
|
6.5
|
|
|
10.4
|
|
|
11.2
|
|
|
154.2
|
|
|
102.6
|
|
|
63.8
|
|
||||||
Provision for depreciation and amortization
|
|
394.8
|
|
|
389.5
|
|
|
359.0
|
|
|
366.3
|
|
|
359.7
|
|
|
318.5
|
|
||||||
Undistributed earnings of unconsolidated subsidiaries and affiliates
|
|
156.2
|
|
|
(165.1
|
)
|
|
(147.0
|
)
|
|
3.8
|
|
|
3.2
|
|
|
(.6
|
)
|
||||||
Provision (credit) for deferred income taxes
|
|
(19.2
|
)
|
|
(229.4
|
)
|
|
(152.3
|
)
|
|
18.0
|
|
|
(.9
|
)
|
|
19.5
|
|
||||||
Changes in assets and liabilities:
|
||||||||||||||||||||||||
Receivables
|
|
116.7
|
|
|
2,198.0
|
|
|
(70.6
|
)
|
|
(3.8
|
)
|
|
(9.3
|
)
|
|
16.8
|
|
||||||
Inventories
|
|
85.8
|
|
|
136.5
|
|
|
(184.0
|
)
|
|||||||||||||||
Accounts payable and accrued expenses
|
|
107.9
|
|
|
225.0
|
|
|
460.8
|
|
|
(4.2
|
)
|
|
169.5
|
|
|
79.2
|
|
||||||
Other
|
|
219.9
|
|
|
200.4
|
|
|
(295.1
|
)
|
|
(26.3
|
)
|
|
(104.2
|
)
|
|
(31.1
|
)
|
||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||
Net cash provided by operating activities
|
|
1,387.8
|
|
|
2,701.3
|
|
|
467.5
|
|
|
770.2
|
|
|
712.7
|
|
|
639.3
|
|
||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||
Cash Flows from Investing Activities
|
||||||||||||||||||||||||
Collections of receivables
|
|
8.7
|
|
|
69.5
|
|
|
13.6
|
|
|
14,992.3
|
|
|
7,068.2
|
|
|
6,641.5
|
|
||||||
Proceeds from sales of financing receivables
|
|
30.6
|
|
|
2,967.8
|
|
|
1,728.0
|
|
|
978.3
|
|
||||||||||||
Proceeds from maturities and sales of marketable securities
|
|
202.8
|
|
|
75.4
|
|
|
32.4
|
|
|
45.0
|
|
||||||||||||
Proceeds from sales of equipment on operating leases
|
|
1.6
|
|
|
2.1
|
|
|
1.4
|
|
|
493.6
|
|
|
389.6
|
|
|
333.2
|
|
||||||
Proceeds from sale of a business
|
|
53.5
|
|
|||||||||||||||||||||
Cost of receivables acquired
|
|
(27.4
|
)
|
|
(2.6
|
)
|
|
(20.1
|
)
|
|
(17,861.4
|
)
|
|
(12,196.9
|
)
|
|
(9,137.0
|
)
|
||||||
Purchases of marketable securities
|
|
(87.8
|
)
|
|
(75.7
|
)
|
|
(61.9
|
)
|
|||||||||||||||
Purchases of property and equipment
|
|
(354.5
|
)
|
|
(485.6
|
)
|
|
(414.1
|
)
|
|
(4.2
|
)
|
|
(5.4
|
)
|
|
(12.6
|
)
|
||||||
Cost of operating leases acquired
|
|
(6.1
|
)
|
|
(9.1
|
)
|
|
(4.7
|
)
|
|
(481.8
|
)
|
|
(766.2
|
)
|
|
(935.2
|
)
|
||||||
Increase in investment in Financial Services
|
|
(700.0
|
)
|
|||||||||||||||||||||
Acquisitions of businesses, net of cash acquired
|
|
(9.3
|
)
|
|
(308.0
|
)
|
|
(641.8
|
)
|
|
(9.7
|
)
|
|
(7.2
|
)
|
|
(1.5
|
)
|
||||||
Decrease (increase) in receivables from unconsolidated affiliates
|
|
54.1
|
|
|
(173.9
|
)
|
|
(135.2
|
)
|
|||||||||||||||
Other
|
|
80.3
|
|
|
66.7
|
|
|
(5.1
|
)
|
|
(79.5
|
)
|
|
5.7
|
|
|
(4.5
|
)
|
||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||
Net cash provided by (used for) investing activities
|
|
(253.2
|
)
|
|
(1,367.0
|
)
|
|
(837.4
|
)
|
|
58.8
|
|
|
(4,001.4
|
)
|
|
(2,289.9
|
)
|
||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||
Cash Flows from Financing Activities
|
||||||||||||||||||||||||
Increase (decrease) in short-term borrowings
|
|
(304.6
|
)
|
|
(225.2
|
)
|
|
459.7
|
|
|
(1,108.6
|
)
|
|
(281.3
|
)
|
|
1,326.1
|
|
||||||
Change in intercompany receivables/payables
|
|
29.6
|
|
|
62.8
|
|
|
(26.7
|
)
|
|
(882.0
|
)
|
|
1,037.0
|
|
|
457.6
|
|
||||||
Proceeds from long-term borrowings
|
|
708.3
|
|
|
558.8
|
|
|
752.1
|
|
|
3,865.4
|
|
|
4,259.5
|
|
|
2,061.8
|
|
||||||
Principal payments on long-term borrowings
|
|
(75.9
|
)
|
|
(73.3
|
)
|
|
(208.7
|
)
|
|
(2,695.1
|
)
|
|
(2,045.2
|
)
|
|
(2,168.7
|
)
|
||||||
Proceeds from issuance of common stock
|
|
48.0
|
|
|
17.8
|
|
|
15.9
|
|
|||||||||||||||
Repurchases of common stock
|
|
(1.2
|
)
|
|
(1.3
|
)
|
|
(.6
|
)
|
|||||||||||||||
Capital investment from Equipment Operations
|
|
700.0
|
|
|||||||||||||||||||||
Dividends paid
|
|
(208.9
|
)
|
|
(206.5
|
)
|
|
(206.0
|
)
|
|
(399.5
|
)
|
|
(10.7
|
)
|
|
(26.8
|
)
|
||||||
Other
|
|
(1.5
|
)
|
|
(2.9
|
)
|
|
(1.3
|
)
|
|
8.7
|
|
|
17.1
|
|
|||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||
Net cash provided by (used for) financing activities
|
|
193.8
|
|
|
130.2
|
|
|
784.4
|
|
|
(1,219.8
|
)
|
|
3,668.0
|
|
|
1,667.1
|
|
||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||
Effect of Exchange Rate Changes on Cash
|
|
2.3
|
|
|
(5.6
|
)
|
|
(3.9
|
)
|
|
(7.6
|
)
|
|
(4.9
|
)
|
|||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||
Net Increase (Decrease) in Cash and Cash Equivalents
|
|
1,330.7
|
|
|
1,458.9
|
|
|
410.6
|
|
|
(398.4
|
)
|
|
374.4
|
|
|
16.5
|
|
||||||
Cash and Cash Equivalents at Beginning of Year
|
|
2,098.6
|
|
|
639.7
|
|
|
229.1
|
|
|
574.7
|
|
|
200.3
|
|
|
183.8
|
|
||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||
Cash and Cash Equivalents at End of Year
|
$
|
3,429.3
|
|
$
|
2,098.6
|
|
$
|
639.7
|
|
$
|
176.3
|
|
$
|
574.7
|
|
$
|
200.3
|
|
||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
*
|
|
Deere & Company with Financial Services on the equity basis.
|
|
|
The supplemental consolidating data is presented for informational purposes. The Equipment Operations (Deere & Company with Financial Services
on the Equity Basis) reflect the basis of consolidation described in Note 1 to the consolidated financial statements. The supplemental Financial Services data represent Deere & Companys credit and health care operations.
Transactions between the Equipment Operations and Financial Services have been eliminated to arrive at the consolidated financial statements.
|
2002
|
2001
|
2000
|
1999
|
1998
|
1997
|
1996
|
1995
|
1994
|
1993
|
|||||||||||||||||||||||||||||||
Net Sales and Revenues
|
$
|
13,947
|
|
$
|
13,293
|
|
$
|
13,137
|
|
$
|
11,751
|
|
$
|
13,822
|
|
$
|
12,791
|
|
$
|
11,229
|
|
$
|
10,291
|
|
$
|
8,977
|
|
$
|
7,696
|
|
||||||||||
Net sales
|
|
11,703
|
|
|
11,077
|
|
|
11,169
|
|
|
9,701
|
|
|
11,926
|
|
|
11,082
|
|
|
9,640
|
|
|
8,830
|
|
|
7,663
|
|
|
6,479
|
|
||||||||||
Finance and interest income
|
|
1,339
|
|
|
1,445
|
|
|
1,321
|
|
|
1,104
|
|
|
1,007
|
|
|
867
|
|
|
763
|
|
|
660
|
|
|
548
|
|
|
563
|
|
||||||||||
Research and development expenses
|
|
528
|
|
|
590
|
|
|
542
|
|
|
458
|
|
|
445
|
|
|
412
|
|
|
370
|
|
|
327
|
|
|
276
|
|
|
270
|
|
||||||||||
Selling, administrative and general expenses
|
|
1,657
|
|
|
1,717
|
|
|
1,505
|
|
|
1,362
|
|
|
1,309
|
|
|
1,321
|
|
|
1,147
|
|
|
1,001
|
|
|
908
|
|
|
844
|
|
||||||||||
Interest expense
|
|
637
|
|
|
766
|
|
|
677
|
|
|
557
|
|
|
519
|
|
|
422
|
|
|
402
|
|
|
393
|
|
|
303
|
|
|
369
|
|
||||||||||
Income (loss) before changes in accounting
|
|
319
|
|
|
(64
|
)
|
|
486
|
|
|
239
|
|
|
1,021
|
|
|
960
|
|
|
817
|
|
|
706
|
|
|
604
|
|
|
184
|
|
||||||||||
Net income (loss)
|
|
319
|
|
|
(64
|
)
|
|
486
|
|
|
239
|
|
|
1,021
|
|
|
960
|
|
|
817
|
|
|
706
|
|
|
604
|
|
|
(921
|
)
|
||||||||||
Return on net sales
|
|
2.7
|
%
|
|
(.6
|
)%
|
|
4.3
|
%
|
|
2.5
|
%
|
|
8.6
|
%
|
|
8.7
|
%
|
|
8.5
|
%
|
|
8.0
|
%
|
|
7.9
|
%
|
|
(14.2
|
)%
|
||||||||||
Return on beginning stockholders equity
|
|
8.0
|
%
|
|
(1.5
|
)%
|
|
11.9
|
%
|
|
5.9
|
%
|
|
24.6
|
%
|
|
27.0
|
%
|
|
26.5
|
%
|
|
27.6
|
%
|
|
28.9
|
%
|
|
(34.7
|
)%
|
||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||
Income (loss) per share before changes in accounting
|
$
|
1.34
|
|
$
|
(.27
|
)
|
$
|
2.07
|
|
$
|
1.03
|
|
$
|
4.20
|
|
$
|
3.78
|
|
$
|
3.14
|
|
$
|
2.71
|
|
$
|
2.34
|
|
$
|
.80
|
|
||||||||||
Net income (loss) per sharebasic
|
|
1.34
|
|
|
(.27
|
)
|
|
2.07
|
|
|
1.03
|
|
|
4.20
|
|
|
3.78
|
|
|
3.14
|
|
|
2.71
|
|
|
2.34
|
|
|
(3.97
|
)
|
||||||||||
Net Income (loss) per sharediluted
|
|
1.33
|
|
|
(.27
|
)
|
|
2.06
|
|
|
1.02
|
|
|
4.16
|
|
|
3.74
|
|
|
3.11
|
|
|
2.69
|
|
|
2.32
|
|
|
(3.97
|
)
|
||||||||||
Dividends declared per share
|
|
.88
|
|
|
.88
|
|
|
.88
|
|
|
.88
|
|
|
.88
|
|
|
.80
|
|
|
.80
|
|
|
.75
|
|
|
.68
1
/
3
|
|
|
.66
2
/
3
|
|
||||||||||
Dividends paid per
share |
|
.88
|
|
|
.88
|
|
|
.88
|
|
|
.88
|
|
|
.86
|
|
|
.80
|
|
|
.80
|
|
|
.73
1
/
3
|
|
|
.66
2
/
3
|
|
|
.66
2
/
3
|
|
||||||||||
Average number of common shares outstanding (in thousands)
|
|
238,217
|
|
|
234,980
|
|
|
234,276
|
|
|
232,874
|
|
|
243,315
|
|
|
253,723
|
|
|
260,547
|
|
|
260,494
|
|
|
258,438
|
|
|
231,874
|
|
||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||
Total assets
|
$
|
23,768
|
|
$
|
22,663
|
|
$
|
20,469
|
|
$
|
17,578
|
|
$
|
18,002
|
|
$
|
16,320
|
|
$
|
14,653
|
|
$
|
13,847
|
|
$
|
12,781
|
|
$
|
11,467
|
|
||||||||||
Trade accounts and notes receivablenet
|
|
2,734
|
|
|
2,923
|
|
|
3,169
|
|
|
3,251
|
|
|
4,059
|
|
|
3,334
|
|
|
3,153
|
|
|
3,260
|
|
|
2,939
|
|
|
2,794
|
|
||||||||||
Financing receivablesnet
|
|
9,068
|
|
|
9,199
|
|
|
8,276
|
|
|
6,743
|
|
|
6,333
|
|
|
6,405
|
|
|
5,912
|
|
|
5,345
|
|
|
4,502
|
|
|
3,755
|
|
||||||||||
Equipment on operating leasesnet
|
|
1,609
|
|
|
1,939
|
|
|
1,954
|
|
|
1,655
|
|
|
1,209
|
|
|
775
|
|
|
430
|
|
|
259
|
|
|
219
|
|
|
195
|
|
||||||||||
Inventories
|
|
1,372
|
|
|
1,506
|
|
|
1,553
|
|
|
1,294
|
|
|
1,287
|
|
|
1,073
|
|
|
829
|
|
|
721
|
|
|
698
|
|
|
464
|
|
||||||||||
Property and equipmentnet
|
|
1,998
|
|
|
2,052
|
|
|
1,912
|
|
|
1,782
|
|
|
1,700
|
|
|
1,524
|
|
|
1,352
|
|
|
1,336
|
|
|
1,314
|
|
|
1,240
|
|
||||||||||
Short-term borrowings:
|
||||||||||||||||||||||||||||||||||||||||
Equipment Operations
|
|
398
|
|
|
773
|
|
|
928
|
|
|
642
|
|
|
1,512
|
|
|
171
|
|
|
223
|
|
|
396
|
|
|
54
|
|
|
476
|
|
||||||||||
Financial Services
|
|
4,039
|
|
|
5,425
|
|
|
4,831
|
|
|
3,846
|
|
|
3,810
|
|
|
3,604
|
|
|
2,921
|
|
|
2,744
|
|
|
2,583
|
|
|
1,125
|
|
||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total
|
|
4,437
|
|
|
6,198
|
|
|
5,759
|
|
|
4,488
|
|
|
5,322
|
|
|
3,775
|
|
|
3,144
|
|
|
3,140
|
|
|
2,637
|
|
|
1,601
|
|
||||||||||
Long-term borrowings:
|
||||||||||||||||||||||||||||||||||||||||
Equipment Operations
|
|
2,989
|
|
|
2,210
|
|
|
1,718
|
|
|
1,036
|
|
|
553
|
|
|
540
|
|
|
626
|
|
|
703
|
|
|
1,019
|
|
|
1,070
|
|
||||||||||
Financial Services
|
|
5,961
|
|
|
4,351
|
|
|
3,046
|
|
|
2,770
|
|
|
2,239
|
|
|
2,083
|
|
|
1,799
|
|
|
1,473
|
|
|
1,035
|
|
|
1,478
|
|
||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total
|
|
8,950
|
|
|
6,561
|
|
|
4,764
|
|
|
3,806
|
|
|
2,792
|
|
|
2,623
|
|
|
2,425
|
|
|
2,176
|
|
|
2,054
|
|
|
2,548
|
|
||||||||||
Total stockholders equity
|
|
3,163
|
|
|
3,992
|
|
|
4,302
|
|
|
4,094
|
|
|
4,080
|
|
|
4,147
|
|
|
3,557
|
|
|
3,085
|
|
|
2,558
|
|
|
2,085
|
|
||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||
Book value per share
|
$
|
13.24
|
|
$
|
16.82
|
|
$
|
18.34
|
|
$
|
17.51
|
|
$
|
17.56
|
|
$
|
16.57
|
|
$
|
13.83
|
|
$
|
11.78
|
|
$
|
9.87
|
|
$
|
8.13
|
|
||||||||||
Capital expenditures
|
$
|
358
|
|
$
|
495
|
|
$
|
419
|
|
$
|
308
|
|
$
|
438
|
|
$
|
492
|
|
$
|
277
|
|
$
|
263
|
|
$
|
230
|
|
$
|
204
|
|
||||||||||
Number of employees (at year end)
|
|
43,051
|
|
|
45,069
|
|
|
43,670
|
|
|
38,726
|
|
|
37,002
|
|
|
34,420
|
|
|
33,919
|
|
|
33,375
|
|
|
34,252
|
|
|
33,070
|
|
DEERE & COMPANY
|
||
By:
|
/s/ R. W. Lane
|
|
R. W. Lane
Chairman and Chief Executive Officer
|
Signature
|
Title
|
Date
|
||
/s/ John R. Block
John R. Block
|
Director
|
)
)
)
|
||
)
|
||||
)
|
||||
/s/ C. C. Bowles
|
Director
|
)
)
|
||
C. C. Bowles
|
)
|
|||
)
|
||||
) 19 December 2002
|
||||
/s/ T. Kevin Dunnigan
|
Director
|
)
)
|
||
T. Kevin Dunnigan
|
)
|
|||
)
|
||||
)
|
||||
/s/ Leonard A. Hadley
|
Director
|
)
)
|
||
Leonard A. Hadley
|
)
|
|||
)
|
Signature
|
Title
|
Date
|
||
)
|
||||
/s/ Dipak C. Jain
|
Director
|
)
)
|
||
Dipak C. Jain
|
)
|
|||
)
|
||||
/s/ Nathan J. Jones
Nathan J. Jones
|
Senior Vice President, Chief
Financial Officer
and
Chief Accounting
Officer
|
)
)
)
|
||
)
|
||||
/s/ Arthur L. Kelly
|
Director
|
)
)
|
||
Arthur L. Kelly
|
)
|
|||
)
|
||||
/s/ R. W. Lane
|
Chairman, Director and
Chief Executive
Officer
|
)
)
|
||
R. W. Lane
|
)
|
|||
) 19 December 2002
|
||||
/s/ Antonio Madero B.
|
Director
|
)
)
|
||
Antonio Madero B.
|
)
|
|||
)
|
||||
/s/ Thomas H. Patrick
|
Director
|
)
)
|
||
Thomas H. Patrick
|
)
|
|||
)
|
||||
/s/ Aulana L. Peters
|
Director
|
)
)
|
||
Aulana L. Peters
|
)
|
|||
)
|
||||
/s/ John R. Walter
|
Director
|
)
)
|
||
John R. Walter
|
)
|
|||
)
|
Column A
|
Column B
|
Column C
|
Column D
|
Column E
|
|||||||||||||||
Additions
|
|||||||||||||||||||
Description
|
Balance at beginning of period
|
Charged to costs and expenses
|
Charged to other accounts
|
Deductions
|
Balance
at
end
of period
|
||||||||||||||
Description
|
Amount
|
Description
|
Amount
|
||||||||||||||||
YEAR ENDED OCTOBER 31, 2002
|
|||||||||||||||||||
Allowance for doubtful receivables:
|
|||||||||||||||||||
Equipment Operations
|
|||||||||||||||||||
Trade receivable allowances
|
$
|
43,341
|
$
|
9,119
|
Bad debt recoveries
|
$
|
1,506
|
Trade receivable write-offs
|
$
|
19,474
|
$
|
32,723
|
|||||||
Transfer related to trade receivable sale
|
|
1,769
|
|||||||||||||||||
Financial Services
|
|||||||||||||||||||
Trade receivable allowances
|
|
7,239
|
|
7,066
|
Acquisition
|
|
1,769
|
Trade receivable write-offs
|
|
3,707
|
|
12,367
|
|||||||
Financing receivable allowances
|
|
125,987
|
|
155,854
|
Transfers related to retail note sales
|
|
18,052
|
||||||||||||
Financing receivable write-offs
|
|
127,343
|
|
136,446
|
|||||||||||||||
|
|
|
|
|
|
|
|
|
|
||||||||||
Consolidated receivable allowances
|
$
|
176,567
|
$
|
172,039
|
$
|
3,275
|
$
|
170,345
|
$
|
181,536
|
|||||||||
|
|
|
|
|
|
|
|
|
|
||||||||||
YEAR ENDED OCTOBER 31, 2001
|
|||||||||||||||||||
Allowance for doubtful receivables:
|
|||||||||||||||||||
Equipment Operations
|
|||||||||||||||||||
Trade receivable allowances
|
$
|
34,447
|
$
|
11,342
|
Bad debt recoveries
|
$
|
4,125
|
Trade receivable write-offs
|
$
|
6,282
|
$
|
43,341
|
|||||||
Acquisition
|
|
6,872
|
Transfer related to trade receivable sale
|
|
7,163
|
||||||||||||||
Financial Services
|
|||||||||||||||||||
Trade receivable allowances
|
|
76
|
Acquisition
|
|
7,163
|
|
7,239
|
||||||||||||
Financing receivable allowances
|
|
106,370
|
|
102,533
|
Transfers related to retail note sales
|
|
9,566
|
||||||||||||
Financing receivable write-offs
|
|
73,350
|
|
125,987
|
|||||||||||||||
|
|
|
|
|
|
|
|
|
|
||||||||||
Consolidated receivable allowances
|
$
|
140,817
|
$
|
113,951
|
$
|
18,160
|
$
|
96,361
|
$
|
176,567
|
|||||||||
|
|
|
|
|
|
|
|
|
|
||||||||||
YEAR ENDED OCTOBER 31, 2000
|
|||||||||||||||||||
Allowance for doubtful receivables:
|
|||||||||||||||||||
Equipment Operations
|
|||||||||||||||||||
Trade receivable allowances
|
$
|
34,027
|
$
|
11,177
|
Bad debt recoveries
|
$
|
1,940
|
Trade receivable write-offs
|
$
|
13,105
|
$
|
34,447
|
|||||||
Acquisition
|
|
408
|
|||||||||||||||||
Financial Services
|
Transfers related to retail note sales
|
|
6,734
|
||||||||||||||||
Financing receivable allowances
|
|
93,219
|
|
63,813
|
Financing receivable write-offs
|
|
43,928
|
|
106,370
|
||||||||||
|
|
|
|
|
|
|
|
|
|
||||||||||
Consolidated receivable allowances
|
$
|
127,246
|
$
|
74,990
|
$
|
2,348
|
$
|
63,767
|
$
|
140,817
|
|||||||||
|
|
|
|
|
|
|
|
|
|
10.4
|
Agreement dated July 14, 1997 between the John Deere Construction Equipment Company and John Deere Capital Corporation concerning construction retail notes
(Exhibit 10.8 to John Deere Capital Corporation Form 10-K for the year ended October 31, 1997 Securities and Exchange Commission file number 1-6458*)
|
|
10.5
|
Agreement dated October 15, 1996 between registrant and John Deere Capital Corporation relating to fixed charges ratio, ownership and minimum net worth of
John Deere Capital Corporation
|
|
10.6
|
Deere & Company Voluntary Deferred Compensation Plan (Exhibit 10.9 to Form 10-K of registrant for the year ended October 31, 1998*) **
|
|
10.7
|
John Deere Performance Bonus Plan as amended December 6, 2000 (Exhibit 10.7 to Form 10-K of registrant for the year ended October 31, 2000*) **
|
|
10.8
|
1986 John Deere Stock Option Plan (Exhibit 10.7 to Form 10-K of registrant for the year ended October 31, 1998*) **
|
|
10.9
|
1991 John Deere Stock Option Plan (Exhibit 10.9 to Form 10-K of registrant for the year ended October 31, 1999*) **
|
|
10.10
|
John Deere Restricted Stock Plan (Appendix to Notice and Proxy Statement of registrant for the annual shareholder meeting on February 28, 1996*)
**
|
|
10.11
|
John Deere Equity Incentive Plan (Exhibit C to Notice and Proxy Statement of registrant for the annual shareholder meeting on February 23, 2000*)
**
|
|
10.12
|
John Deere Omnibus Equity and Incentive Plan (Exhibit A to Notice and Proxy Statement of registrant for the annual shareholder meeting on February 23, 2000*)
**
|
|
10.13
|
John Deere Defined Contribution Restoration Plan as amended January 1, 2000 (Exhibit 10.13 to Form 10-K of registrant for the year ended October 31, 2000*)
**
|
|
10.14
|
John Deere Supplemental Pension Benefit Plan, as amended July 31, 2000 (Exhibit 10.14 to Form 10-K of registrant for the year ended October 31,
2000*)**
|
|
10.15
|
1993 Nonemployee Director Stock Ownership Plan as amended August 25, 1999 (Exhibit 10.15 to Form 10-K of registrant for the year ended October 31,
1999*)**
|
|
10.16
|
Deere & Company Nonemployee Director Deferred Compensation Plan as amended May 26, 1999 (Exhibit 10.16 to Form 10-K of registrant for the year ended
October 31, 1999*)**
|
|
10.17
|
Form of Severance Protection Agreement between registrant and the executive officers (Exhibit 10.1 to Form 10-Q of registrant for the quarter ended April 30,
2000*)**
|
|
10.18
|
Early Retirement Agreement dated August 10, 2001 between registrant and Ferdinand F. Korndorf (Exhibit 10.18 to Form 10-K of registrant for the year ended
October 31, 2001*)**
|
|
10.19
|
Asset Purchase Agreement dated October 29, 2001 between registrant and Deere Capital, Inc. concerning the sale of trade receivables (Exhibit 10.19 to Form
10-K of registrant for the year ended October 31, 2001*)
|
|
10.20
|
Asset Purchase Agreement dated October 29, 2001 between John Deere Construction & Forestry Company and Deere Capital, Inc. concerning the sale of trade
receivables (Exhibit 10.20 to Form 10-K of registrant for the year ended October 31, 2001*)
|
|
10.21
|
Factoring Agreement dated September 20, 2002 between John Deere Finance S.A. and John Deere Vertrieb, a branch of Deere & Company, concerning the sale of
trade receivables
|
|
10.22
|
Receivables Purchase Agreement dated August 23, 2002 between John Deere Finance S.A. and John Deere Limited (Scotland) concerning the sale of trade
receivables
|
|
12.
|
Computation of ratio of earnings to fixed charges
|
|
13.
|
Not applicable
|
16.
|
Not applicable
|
|
18.
|
Not applicable
|
|
21.
|
Subsidiaries
|
|
22.
|
Not applicable
|
|
23.
|
Consent of Deloitte & Touche LLP
|
|
24.
|
Power of Attorney (included on signature page)
|
|
99.
|
Statement of Robert W. Lane, Chairman, President and Chief Executive Officer of Deere & Company and Nathan J. Jones, Senior Vice President and Chief
Financial Officer of Deere & Company, as required by Section 906 of the Sarbanes-Oxley Act of 2002
|
*
|
|
Incorporated by reference. Copies of these exhibits are available from the Company upon request.
|
**
|
|
Compensatory plan or arrangement filed as an exhibit pursuant to Item 14(c) of Form 10-K.
|
EXHIBIT 4.4 | ||
|
||
|
||
|
||
|
||
|
||
DEERE & COMPANY | ||
and | ||
THE BANK OF NEW YORK | ||
Rights Agent | ||
|
|
|
Rights Agreement | ||
Dated as of December 3, 1997 | ||
|
||
|
||
|
||
|
TABLE OF CONTENTS | ||
Page | ||
Section 1 | Certain Definitions | 13 |
Section 2. | Appointment of Rights Agent | 18 |
Section 3. | Issue of Rights Certificates | 18 |
Section 4. | Form of Rights Certificates | 21 |
Section 6. | Transfer, Split Up, Combination and Exchange of Rights Certificates; Mutilated, Destroyed, Lost or Stolen Rights Certificates | 23 |
Section 7. | Exercise of Rights; Purchase Price; Expiration Date of Rights | 24 |
Section 8. | Cancellation and Destruction of Rights Certificates | 27 |
Section 9. | Reservation and Availability of Capital Stock | 27 |
Section 10. | Preferred Stock Record Date | 30 |
Section 11. | Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights | 30 |
Section 12. | IGN Certificate of Adjusted Purchase Price or Number of Shares | 42 |
Section 13. | Consolidation, Merger or Sale or Transfer of Assets or Earning Power | 42 |
Section 14. | Fractional Rights and Fractional Shares | 46 |
Section 15. | Rights of Action | 48 |
Section 16. | Agreement of Rights Holders | 48 |
Page 11
RIGHTS AGREEMENT |
RIGHTS AGREEMENT, dated as of December 3, 1997 (the "Agreement"), between Deere & Company, a Delaware corporation (the "Company"), and The Bank of New York, a New York corporation (the "Rights Agent"). |
W I T N E S S E T H |
WHEREAS, on December 9, 1987 (the "1987 Rights Dividend Declaration Date"), the Board of Directors of the Company authorized the Rights Agreement, dated as of December 9, 1987, as amended, between the Company and the Rights Agent thereunder (the "1987 Agreement") and declared a dividend distribution of one right (a "1987 Right") for each share of Common Stock (as hereinafter defined) of the Company outstanding at the close of business on December 31, 1987 (the "1987 Record Date"). Each 1987 Right representing the right to purchase one one-hundredth of a share of Series A Participating Preferred Stock of the Company; |
WHEREAS, on December 3, 1997, the Board of Directors of the Company determined it desirable and in the best interests of the Company and its shareholders for the Company to extend the benefits afforded by the 1987 Agreement and to implement such extension by executing this Agreement; |
WHEREAS, on December 3, 1997 (the "Rights Dividend Declaration Date"), the Board of Directors of the Company authorized and declared a dividend distribution of one Right (as hereinafter defined) for each share of Common Stock outstanding upon the close of business on December 31, 1997 (the "Record Date"), and has authorized the issuance of one Right (as such number may hereinafter be adjusted pursuant to the provisions of Section 11(p) hereof) for each share of Common Stock issued (whether as an original issuance or from the Company's treasury) between the Record Date and the Distribution Date (as hereinafter defined) and in certain other circumstances provided herein, each Right initially representing the right to purchase one three-hundredth of a share of Series A Participating Preferred Stock of the Company upon the terms and subject to the conditions hereinafter set forth (the "Rights"); |
Page 12
NOW, THEREFORE, in consideration of the premises and the mutual agreements herein set forth, the parties hereby agree as follows: | |
Section 1. Certain Definitions. For purposes of this Agreement, the following terms have the meanings indicated: | |
(a) | "Acquiring Person" shall mean any Person who or which, together with all Affiliates and Associates of such Person, shall be the Beneficial Owner of fifteen percent (15%) or more of the shares of Common Stock then outstanding, but shall not include the (i) Company, (ii) any Subsidiary of the Company, (iii) any employee benefit plan of the Company, or of any Subsidiary of the Company, or any Person or entity organized, appointed or established by the Company for or pursuant to the terms of any such plan or (iv) any Person who becomes the Beneficial Owner of fifteen percent (15%) or more of the shares of Common Stock then outstanding as a result of a reduction in the number of shares of Common Stock outstanding due to the repurchase of shares of Common Stock by the Company unless and until such Person, after becoming aware that such Person has become the Beneficial Owner of fifteen percent (15%) or more of the then outstanding shares of Common Stock, acquires beneficial ownership of additi onal shares of Common Stock representing one percent (1%) or more of the shares of Common Stock then outstanding, or (v) any such Person who has reported or is required to report such ownership (but less than 20%) on Schedule 13G under the Securities and Exchange Act of 1934, as amended and in effect on the date of the Agreement (the "Exchange Act") (or any comparable or successor report) or on Schedule 13D under the Exchange Act (or any comparable or successor report) which Schedule 13D does not state any intention to or reserve the right to control or influence the management or policies of the Company or engage in any of the actions specified in Item 4 of such schedule (other than the disposition of the Common Stock) and, within 10 Business Days of being requested by the Company to advise it regarding the same, certifies to the Company that such Person acquired shares of Common Stock in excess of 14.9% inadvertently or without knowledge of the terms of the Rights and who, together with all Affiliates and Associates, thereafter does not acquire additional shares of Common Stock while the Beneficial Owner of 15% or more of the shares of Common Stock then outstanding; |
provided, however, that if the Person requested to so certify fails to do so within 10 Business Days, then such Person shall become an Acquiring Person immediately after such 10-Business- Day period. | ||
(b) | "Act" shall mean the Securities Act of 1933. | |
(c) | "Affiliate" and "Associate" shall have the respective meanings ascribed to such terms in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended and in effect on the date of this Agreement (the "Exchange Act"). | |
(d) | A Person shall be deemed the "Beneficial Owner" of, and shall be deemed to "beneficially own," any securities: | |
(i) | which such Person or any of such Person's Affiliates or Associates, directly or indirectly, has the right to acquire (whether such right is exercisable immediately or only after the passage of time) pursuant to any agreement, arrangement or understanding (whether or not in writing) or upon the exercise of conversion rights, exchange rights, rights, warrants or options, or otherwise; provided, however, that a Person shall not be deemed the "Beneficial Owner" of, or to "beneficially own," (A) securities tendered pursuant to a tender or exchange offer made by such Person or any of such Person's Affiliates or Associates until such tendered securities are accepted for purchase or exchange, (B) securities issuable upon exercise of Rights at any time prior to the occurrence of a Triggering Event (as hereinafter defined), or (C) securities issuable upon exercise of Rights from and after the occurrence of a Triggering Event which Rights were acquired by such Person or any of such Person's Affili ates or Associates prior to the Distribution Date (as hereinafter defined) or pursuant to Section 3(a) or Section 22 hereof (the "Original Rights") or pursuant to Section 11(i) hereof in connection with an adjustment made with respect to any Original Rights; | |
(ii) | which such Person or any of such Person's Affiliates or Associates, directly or indirectly, has the right to vote or dispose of or has "beneficial ownership" of (as determined pursuant to Rule 13d-3 of the General Rules and |
Regulations under the Exchange Act), including pursuant to any agreement, arrangement or understanding, whether or not in writing; provided, however, that a Person shall not be deemed the "Beneficial Owner" of, or to "beneficially own," any security under this subparagraph (ii) as a result of an agreement, arrangement or understanding to vote such security if such agreement, arrangement or understanding: (A) arises solely from a revocable proxy given in response to a public proxy or consent solicitation made pursuant to, and in accordance with, the applicable provisions of the General Rules and Regulations under the Exchange Act, and (B) is not reportable by such Person on Schedule 13D under the Exchange Act (or any comparable or successor report); or | ||
(iii) | which are beneficially owned, directly or indirectly, by any other Person (or any Affiliate or Associate thereof) with which such Person (or any of such Person's Affiliates or Associates) has any agreement, arrangement or understanding (whether or not in writing), for the purpose of acquiring, holding, voting (except pursuant to a revocable proxy as described in the proviso to subparagraph (ii) of this paragraph (d)) or disposing of any voting securities of the Company; provided, however, that nothing in this paragraph (d) shall cause a Person engaged in business as an underwriter of securities to be the "Beneficial Owner" of, or to "beneficially own," any securities acquired through such Person's participation in good faith in a firm commitment underwriting until the expiration of forty days after the date of such acquisition, and then only if such securities continue to be owned by such Person at such expiration of forty days. | |
(e) | "Business Day" shall mean any day other than a Saturday, Sunday or a day on which banking institutions in the States of Illinois or New York are authorized or obligated by law or executive order to close. | |
(f) | "Close of business" on any given date shall mean 5:00 P.M., New York City time (or Chicago time for purposes of Section 23 hereof), on such date; provided, however, that if such date is not a Business Day it shall mean 5:00 P.M., New York City time (or Chicago time for purposes of Section 23 hereof), on the next succeeding Business Day. |
(g) | "Common Stock" shall mean the common stock, $1 par value, of the Company, except that "Common Stock" when used with reference to any Person other than the Company shall mean the capital stock of such Person with the greatest voting power, or the equity securities or other equity interest having power to control or direct the management, of such Person. |
(h) | "Common Stock Equivalents" shall have the meaning set forth in Section 11(a)(iii) hereof. |
(i) | "Current market price" shall have the meaning set forth in Section 11(d)(i) hereof. |
(j) | "Current Value" shall have the meaning set forth in Section 11(a)(iii) hereof. |
(k) | "Distribution Date" shall have the meaning set forth in Section 3(a) hereof. |
(l) | " Equivalent Preferred Stock" shall have the meaning set forth in Section 11(b) hereof. |
" (m) | " "Exchange Act" shall have the meaning set forth in Section 1(c) hereof. |
(n) | "Exchange Ratio" shall have the meaning set forth in Section 24 hereof. |
(o) | "Expiration Date" shall have the meaning set forth in Section 7(a) hereof. |
(p) | "Final Expiration Date" shall have the meaning set forth in Section 7(a) hereof. |
(q) | "Person" shall mean any individual, firm, corporation, partnership or other entity. |
(r) | "Preferred Stock" shall mean shares of Series A Participating Preferred Stock, $1 par value, of the Company and, to the extent that there are not a sufficient number of shares of Series A Participating Preferred Stock authorized to permit the full exercise of the Rights, any other series of Preferred Stock, $1 par value, of the Company designated for |
such purpose containing terms substantially similar to the terms of the Series A Participating Preferred Stock. | |
(s) | "Principal Party" shall have the meaning set forth in Section 13(b) hereof. |
(t) | "Purchase Price" shall have the meaning set forth in Section 4(a)(ii) hereof. |
(u) | "Record Date" shall have the meaning set forth in the WHEREAS clause at the beginning of this Agreement. |
(v) | "Redemption Price" shall have the meaning set forth in Section 23(a) hereof. |
(w) | "Rights" shall have the meaning set forth in the WHEREAS clause at the beginning of this Agreement. |
(x) | "Rights Certificates" shall have the meaning set forth in Section 3(a) hereof. |
(y) | "Rights Dividend Declaration Date" shall have the meaning set forth in the WHEREAS clause at the beginning of this Agreement. |
(z) | "Section 11(a)(ii) Event" shall mean any event described in Section 11(a)(ii) hereof. |
(aa) | "Section 11(a)(ii) Trigger Date" shall have the meaning set forth in Section 11(a)(iii) hereof. |
(bb) | "Section 13 Event" shall mean any event described in clauses (x), (y) or (z) of Section 13(a) hereof. |
(cc) | "Spread" shall have the meaning set forth in Section 11(a)(iii) hereof. |
(dd) | "Stock Acquisition Date" shall mean the first date of public announcement (which, for purposes of the definition, shall include, without limitation, a report filed pursuant Section 13(d) under the Exchange Act) by the Company or an Acquiring Person that an Acquiring Person has become such. |
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(ee) | "Subsidiary" shall mean, with reference to any Person, any corporation of which an amount of voting securities sufficient to elect at least a majority of the directors of such corporation is beneficially owned, directly or indirectly, by such Person, or otherwise controlled by such Person. |
(ff) | "Substitution Period" shall have the meaning set forth in Section 11(a)(iii) hereof. |
(gg) | "Summary of Rights" shall have the meaning set forth in Section 3(b) hereof. |
(hh) | "Trading Day" shall have the meaning set forth in Section 11(d)(i) hereof. |
(ii) | "Triggering Event" shall mean any Section 11(a)(ii) Event or any Section 13 Event. |
Section 2. Appointment of Rights Agent. The Company hereby appoints the Rights Agent to act as agent for the Company and the holders of the Rights (who, in accordance with Section 3 hereof, shall prior to the Distribution Date also be the holders of the Common Stock) in accordance with the terms and conditions hereof, and the Rights Agent hereby accepts such appointment. The Company may from time to time appoint such co- rights agents as it may deem necessary or desirable. The Rights Agent shall have no duty to supervise and shall, in no event, be liable for the acts or omissions of any such co-rights agent. | |
Section 3. Issue of Rights Certificates. | |
(a) | Until the earlier of (i) the close of business on the tenth day after the Stock Acquisition Date (or, if the tenth day after the Stock Acquisition Date occurs before the Record Date, the close of business on the Record Date), or (ii) the close of business on the tenth business day (or such later date as the Board shall determine) after the date that a tender or exchange offer by any Person (other than the Company, any Subsidiary of the Company, any employee benefit plan of the Company or of any Subsidiary of the Company, or any Person or entity organized, appointed or established by the Company for or pursuant to the terms of any such plan) is first published |
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or sent or given within the meaning of Rule 14d-2(a) of the General Rules and Regulations under the Exchange Act, if upon consummation thereof, such Person would become an Acquiring Person (the earlier of (i) and (ii) being herein referred to as the "Distribution Date"), (x) the Rights will be evidenced (subject to the provisions of paragraph (b) of this Section 3) by the certificates for the Common Stock registered in the names of the holders of the Common Stock (which certificates for Common Stock shall be deemed also to be certificates for Rights) and not by separate certificates, and (y) the Rights will be transferable only in connection with the transfer of the underlying shares of Common Stock (including a transfer to the Company). The Company shall give the Rights Agent prompt written notice of the Distribution Date. As soon as practicable after the Distribution Date, and receipt of written notice of such Distribution Date from the Company the Rights Agent will send by such means as may be selected by the Company, to each record holder of the Common Stock as of the close of business on the Distribution Date, at the address of such holder shown on the records of the Company, one or more rights certificates, in substantially the form of Exhibit A hereto (the "Rights Certificates"), evidencing one Right for each share of Common Stock so held, subject to adjustment as provided herein. In the event that an adjustment in the number of Rights per share of Common Stock has been made pursuant to Section 11(p) hereof, at the time of distribution of the Rights Certificates, the Company shall make the necessary and appropriate rounding adjustments (in accordance with Section 14(a) hereof) so that Rights Certificates representing only whole numbers of Rights are distributed and cash is paid in lieu of any fractional Rights. As of and after the Distribution Date, the Rights will be evidenced solely by such Rights Certificates. | |
(b) | The Company will make available, as promptly as practicable following the Record Date, a copy of a Summary of Rights, in substantially the form attached hereto as Exhibit B (the "Summary of Rights") to any holder who may so request from time to time prior to the expiration Date. With respect to certificates for the Common Stock outstanding as of the Record Date, until the Distribution Date, the Rights will be evidenced by such certificates for the Common Stock and the registered holders of the Common Stock shall also be the registered holders of the associated Rights. Until the earlier of the |
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Distribution Date or the Expiration Date (as such term is defined in Section (a) hereof), the transfer of any certificates representing shares of Common Stock in respect of which Rights have been issued shall also constitute the transfer of the Rights associated with such shares of Common Stock. | |
(c) | Rights shall be issued in respect of all shares of Common Stock which are issued (whether originally issued or from the Company's treasury) after the Record Date but prior to the earlier of the Distribution Date or the Expiration Date. Certificates representing such shares of Common Stock shall also be deemed to be certificates for Rights and shall bear the following legend (or the legend required under the 1987 Agreement): |
This certificate also evidences and entitles the holder hereof to certain Rights as set forth in the Rights Agreement between Deere & Company (the "Company") and the Rights Agent thereunder (the "Rights Agreement"), the terms of which are hereby incorporated herein by reference and a copy of which is on file at the principal offices of the Company. Under certain circumstances, as set forth in the Rights Agreement, such Rights will be evidenced by separate certificates and will no longer be evidenced by this certificate. The Company will mail to the holder of this certificate a copy of the Rights Agreement, as in effect on the date of mailing, without charge, promptly after receipt of a written request therefor. Under certain circumstances set forth in the Rights Agreement, Rights issued to, or held by, any Person who is, was or becomes an Acquiring Person or any Affiliate or Associate thereof (as such terms are defined in the Rights Agreement), whether currently held by or on behalf of such Person or by any subsequent holder, may become null and void. | |
With respect to such certificates bearing the foregoing legend (or the legend required under the 1987 Agreement), until the earlier of (i) the Distribution Date or (ii) the Expiration Date, the Rights associated with the Common Stock represented by such certificates shall be evidenced by such certificates alone and registered holders of Common Stock shall also be the registered holders of the associated Rights, and the transfer |
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of any of such certificates shall also constitute the transfer of the Rights associated with the Common Stock represented by such certificates. | |
Section 4. Form of Rights Certificates. | |
(a) | The Rights Certificates (and the forms of election to purchase and of assignment to be printed on the reverse thereof) shall each be substantially in the form set forth in Exhibit A hereto and may have such marks of identification or designation and such legends, summaries or endorsements printed thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this Agreement, or as may be required to comply with any applicable law or with any rule or regulation made pursuant thereto or with any rule or regulation of any stock exchange on which the Rights may from time to time be listed, or to conform to usage. The Rights Certificates shall be in machine printable format in a form satisfactory to the Rights Agent. Subject to the provisions of Section 11 and Section 22 hereof, the Rights Certificates, whenever distributed, shall be dated as of the Record Date and on their face shall entitle the holders thereof to purchase such number of one three-hundredths o f a share of Preferred Stock as shall be set forth therein at the price set forth therein (such exercise price per one three-hundredth of a share, the "Purchase Price"), but the amount and type of securities purchasable upon the exercise of each Right and the Purchase Price thereof shall be subject to adjustment as provided herein. |
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(b) | Any Rights Certificate issued pursuant to Section 3(a), Section 11(i) or Section 22 hereof that represents Rights beneficially owned by: (i) an Acquiring Person or any Associate or Affiliate of an Acquiring Person, (ii) a transferee of an Acquiring Person (or of any such Associate or Affiliate) who becomes a transferee after the Acquiring Person becomes such, or (iii) a transferee of an Acquiring Person (or of any such Associate or Affiliate) who becomes a transferee prior to or concurrently with the Acquiring Person becoming such and receives such Rights pursuant to either (A) a transfer (whether or not for consideration) from the Acquiring Person to holders of equity interests in such Acquiring Person or to any Person with whom such Acquiring Person has any continuing |
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agreement, arrangement or understanding regarding the transferred Rights or (B) a transfer which the Board of Directors of the Company has determined is part of a plan, arrangement or understanding which has as a primary purpose or effect avoidance of Section 7(e) hereof, and any Rights Certificate issued pursuant to Section 6 or Section 11 hereof upon transfer, exchange, replacement or adjustment of any other Rights Certificate referred to in this sentence, shall contain (to the extent feasible) the following legend: | ||
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The Rights represented by this Rights Certificate are or were beneficially owned by a Person who was or became an Acquiring Person or an Affiliate or Associate of an Acquiring Person (as such terms are defined in the Rights Agreement). Accordingly, this Rights Certificate and the Rights represented hereby may become null and void in the circumstances specified in Section 7(e) of such Agreement. | |
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Section 5. Countersignature and Registration. | ||
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(a) | The Rights Certificates shall be executed on behalf of the Company by its Chairman of the Board, its President or any Vice President, either manually or by facsimile signature, and shall have affixed thereto the Company's seal or a facsimile thereof which shall be attested by the Secretary or an Assistant Secretary of the Company, either manually or by facsimile signature. The Rights Certificates shall be countersigned by the Rights Agent, either manually or by facsimile signature, and shall not be valid for any purpose unless so countersigned. In case any officer of the Company who shall have signed any of the Rights Certificates shall cease to be such officer of the Company before countersignature by the Rights Agent and issuance and delivery by the Company, such Rights Certificates, nevertheless, may be countersigned by the Rights Agent and issued and delivered by the Company with the same force and effect as though the person who signed such Rights Certificates had not ceased to be such officer of the Company; and any Rights Certificates may be signed on behalf of the Company by any person who, at the actual date of the execution of such Rights Certificate, shall be a proper officer of the Company to sign such Rights Certificate, although at the date of the execution of this Rights Agreement any such person was not such an officer. |
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(b) | Following the Distribution Date, the Rights Agent will keep or cause to be kept, at its principal office or offices designated as the appropriate place for surrender of Rights Certificates upon exercise or transfer, books for registration and transfer of the Rights Certificates issued hereunder. Such books shall show the names and addresses of the respective holders of the Rights Certificates, the number of Rights evidenced on its face by each of the Rights Certificates and the date of each of the Rights Certificates. |
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Section 6. Transfer, Split Up, Combination and Exchange of Rights Certificates; Mutilated, Destroyed, Lost or Stolen Rights Certificates. | |
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(a) | Subject to the provisions of Section 4(b), Section 7(e) and Section 14 hereof, at any time after the close of business on the Distribution Date, and at or prior to the close of business on the Expiration Date, any Rights Certificate or Certificates (other than Rights Certificates representing Rights that may have been exchanged pursuant to Section 24 hereof) may be transferred, split up, combined or exchanged for another Rights Certificate or Certificates, entitling the registered holder to purchase a like number of one three- hundredths of a share of Preferred Stock (or, following a Triggering Event, Common Stock, other securities, cash or other assets, as the case may be) as the Rights Certificate or Certificates surrendered then entitles such holder (or former holder in the case of a transfer) to purchase. Any registered holder desiring to transfer, split up, combine or exchange any Rights Certificate or Certificates shall make such request in writing delivered to the Rights Agent, a nd shall surrender the Rights Certificate or Certificates to be transferred, split up, combined or exchanged at the principal office or offices of the Rights Agent designated for such purpose. Neither the Rights Agent nor the Company shall be obligated to take any action whatsoever with respect to the transfer of any such surrendered Rights Certificate until the registered holder shall have completed and signed the certificate contained in the form of assignment on the reverse side of such Rights Certificate and shall have provided such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company shall reasonably request. Thereupon the Rights Agent shall, subject to Section 4(b), |
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Section 7(e), Section 14 and Section 24 hereof, countersign and deliver to the Person entitled thereto a Rights Certificate or Rights Certificates, as the case may be, as so requested. The Company may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any transfer, split up, combination or exchange of Rights Certificates. | |
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(b) | Upon receipt by the Company and the Rights Agent of evidence reasonably satisfactory to them of the loss, theft, destruction or mutilation of a Rights Certificate, and, in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to them, and reimbursement to the Company and the Rights Agent of all reasonable expenses incidental thereto, and upon surrender to the Rights Agent and cancellation of the Rights Certificate if mutilated, the Company will execute and deliver a new Rights Certificate of like tenor to the Rights Agent for countersignature and delivery to the registered owner in lieu of the Rights Certificate so lost, stolen, destroyed or mutilated. |
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Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights. | |
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(a) | Subject to Section 7(e) hereof, at any time after the Distribution Date the registered holder of any Rights Certificate may exercise the Rights evidenced thereby (except as otherwise provided herein including, without limitation, the restrictions on exercisability set forth in Section 9(c), Section 11(a)(iii) and Section 23(a) hereof) in whole or in part upon surrender of the Rights Certificate, with the form of election to purchase and the certificate on the reverse side thereof duly executed, to the Rights Agent at the principal office or offices of the Rights Agent designated for such purpose, together with payment of the aggregate Purchase Price with respect to the total number of one three-hundredths of a share (or other securities, cash or other assets, as the case may be) as to which such surrendered Rights are then exercisable, at or prior to the earlier of (i) 5:00 P.M., New York City time, on December 31, 2007, or such later date as may be established by the Board of Directors prior to the expiration of the Rights (such date, as it may be extended by the Board, the "Final Expiration Date"), or (ii) the time at |
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which the Rights are redeemed or exchanged as provided in Section 23 and Section 24 hereof (the earlier of (i) and (ii) being herein referred to as the "Expiration Date"). | |
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(b) | The Purchase Price for each one three-hundredth of a share of Preferred Stock pursuant to the exercise of a Right shall initially be $225, and shall be subject to adjustment from time to time as provided in Sections 11 and 13(a) hereof and shall be payable in accordance with paragraph (c) below. |
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(c) | Upon receipt of a Rights Certificate representing exercisable Rights, with the form of election to purchase and the certificate duly executed, accompanied by payment, with respect to each Right so exercised, of the Purchase Price per one three-hundredth of a share of Preferred Stock (or other shares, securities, cash or other assets, as the case may be) to be purchased as set forth below and an amount equal to any applicable transfer tax, the Rights Agent shall, subject to Section 20(k) hereof, thereupon promptly (i) (A) requisition from any transfer agent of the shares of Preferred Stock (or make available, if the Rights Agent is the transfer agent for such shares) certificates for the total number of one three- hundredths of a share of Preferred Stock to be purchased and the Company hereby irrevocably authorizes its transfer agent to comply with all such requests, or (B) if the Company shall have elected to deposit the total number of shares of Preferred Stock issuable upon exercise o f the Rights hereunder with a depositary agent, requisition from the depositary agent depositary receipts representing such number of one three- hundredths of a share of Preferred Stock as are to be purchased (in which case certificates for the shares of Preferred Stock represented by such receipts shall be deposited by the transfer agent with the depositary agent) and the Company will direct the depositary agent to comply with such request, (ii) requisition from the Company the amount of cash, if any, to be paid in lieu of fractional shares in accordance with Section 14 hereof, (iii) after receipt of such certificates or depositary receipts, cause the same to be delivered to or, upon the order of the registered holder of such Rights Certificate, registered in such name or names as may be designated by such holder, and (iv) after receipt thereof, deliver such cash, if any, to or upon the order of the registered holder of such Rights Certificate. The payment of the Purchase Price (as such amount |
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may be adjusted pursuant to Section 11(a)(iii) hereof) shall be made in cash or by certified bank check or bank draft payable to the order of the Company. In the event that the Company is obligated to issue other securities (including Common Stock) of the Company, pay cash and/or distribute other property pursuant to Section 11(a) hereof, the Company will make all arrangements necessary so that such other securities, cash and/or other property are available for distribution by the Rights Agent, if and when appropriate. The Company reserves the right to require prior to the occurrence of a Triggering Event that, upon any exercise of Rights, a number of Rights be exercised so that only whole shares of Preferred Stock will be issued. | |
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(d) | In case the registered holder of any Rights Certificate shall exercise less than all the Rights evidenced thereby, a new Rights Certificate evidencing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent and delivered to, or upon the order of, the registered holder of such Rights Certificate, registered in such name or names as may be designated by such holder, subject to the provisions of Section 14 hereof. |
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(e) | Notwithstanding anything in this Agreement to the contrary, from and after the first occurrence of a Section 11(a)(ii) Event, any Rights beneficially owned by (i) an Acquiring Person or an Associate or Affiliate of an Acquiring Person, (ii) a transferee of an Acquiring Person (or of any such Associate or Affiliate) who becomes a transferee after the Acquiring Person becomes such, or (iii) a transferee of an Acquiring Person (or of any such Associate or Affiliate) who becomes a transferee prior to or concurrently with the Acquiring Person becoming such and receives such Rights pursuant to either (A) a transfer (whether or not for consideration) from the Acquiring Person to holders of equity interests in such Acquiring Person or to any Person with whom the Acquiring Person has any continuing agreement, arrangement or understanding regarding the transferred Rights or (B) a transfer which the Board of Directors of the Company has determined is part of a plan, arrangement or understanding wh ich has as a primary purpose or effect the avoidance of this Section 7(e), shall become null and void without any further action and no holder of such Rights shall have any rights whatsoever with respect to such Rights, whether under any |
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provision of this Agreement or otherwise. The Company shall use all reasonable efforts to insure that the provisions of this Section 7(e) and Section 4(b) hereof are complied with, but shall have no liability to any holder of Rights Certificates or other Person as a result of its failure to make any determinations with respect to an Acquiring Person or its Affiliates, Associates or transferees hereunder. | |
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(f) | Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor the Company shall be obligated to undertake any action with respect to a registered holder upon the occurrence of any purported exercise as set forth in this Section 7 unless such registered holder shall have (i) completed and signed the certificate contained in the form of election to purchase set forth on the reverse side of the Rights Certificate surrendered for such exercise, and (ii) provided such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company shall reasonably request. |
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Section 8. Cancellation and Destruction of Rights Certificates. All Rights Certificates surrendered for the purpose of exercise, transfer, split up, combination or exchange shall, if surrendered to the Company or any of its agents, be delivered to the Rights Agent for cancellation or in cancelled form, or, if surrendered to the Rights Agent, shall be cancelled by it, and no Rights Certificates shall be issued in lieu thereof except as expressly permitted by any of the provisions of this Agreement. The Company shall deliver to the Rights Agent for cancellation and retirement, and the Rights Agent shall so cancel and retire, any other Rights Certificate purchased or acquired by the Company otherwise than upon the exercise thereof. The Rights Agent shall deliver all cancelled Rights Certificates to the Company, or shall, at the written request of the Company, destroy such cancelled Rights Certificates, and in such case shall deliver a certificate of destruction thereof to the Company. | |
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Section 9. Reservation and Availability of Capital Stock. | |
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(a) | The Company covenants and agrees that it will cause to be reserved and kept available out of its authorized and unissued shares of Preferred Stock (and, following the |
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occurrence of a Triggering Event, out of its authorized and unissued shares of Common Stock and/or other securities or out of its authorized and issued shares held in its treasury), the number of shares of Preferred Stock (and, following the occurrence of a Triggering Event, Common Stock and/or other securities) that, as provided in this Agreement including Section 11(a)(iii) hereof, will be sufficient to permit the exercise in full of all outstanding Rights. | |
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(b) | So long as the shares of Preferred Stock (and, following the occurrence of a Triggering Event, Common Stock and/or other securities) issuable and deliverable upon the exercise of the Rights may be listed on any national securities exchange, the Company shall use its best efforts to cause, from and after such time as the Rights become exercisable, all shares reserved for such issuance to be listed on such exchange upon official notice of issuance upon such exercise. |
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(c) | The Company shall use its best efforts to (i) file, as soon as practicable following the earliest date after the first occurrence of a Section 11(a)(ii) Event on which the consideration to be delivered by the Company upon exercise of the Rights has been determined in accordance with Section 11(a)(iii) hereof, a registration statement under the Act, with respect to the securities purchasable upon exercise of the Rights on an appropriate form, (ii) cause such registration statement to become effective as soon as practicable after such filing, and (iii) cause such registration statement to remain effective (with a prospectus at all times meeting the requirements of the Act) until the earlier of (A) the date as of which the Rights are no longer exercisable for such securities, and (B) the date of the expiration of the Rights. The Company will also take such action as may be appropriate under, or to ensure compliance with, the securities or "blue sky" laws of the various states in connection with the exercisability of the Rights. The Company may temporarily suspend, for a period of time not to exceed ninety (90) days after the date set forth in clause (i) of the first sentence of this Section 9(c), the exercisability of the Rights in order to prepare and file such registration statement and permit it to become effective. Upon any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public |
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announcement at such time as the suspension has been rescinded. In addition, if the Company shall determine that a registration statement is required following the Distribution Date, the Company may temporarily suspend the exercisability of the Rights until such time as a registration statement has been declared effective. Notwithstanding any provision of this Agreement to the contrary, the Rights shall not be exercisable in any jurisdiction if the requisite qualification in such jurisdiction shall not have been obtained, the exercise thereof shall not be permitted under applicable law, or a necessary registration statement shall not have been declared effective. | |
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(d) | The Company covenants and agrees that it will take all such action as may be necessary to ensure that all one three-hundredths of a share of Preferred Stock (and, following the occurrence of a Triggering Event, Common Stock and/or other securities) delivered upon exercise of Rights shall, at the time of delivery of the certificates for such shares (subject to payment of the Purchase Price), be duly and validly authorized and issued and fully paid and non-assessable. |
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(e) | The Company further covenants and agrees that it will pay when due and payable any and all federal and state transfer taxes and charges which may be payable in respect of the issuance or delivery of the Rights Certificates and of any certificates for a number of one three-hundredths of a share of Preferred Stock (or Common Stock and/or other securities, as the case may be) upon the exercise of Rights. The Company shall not, however, be required to pay any transfer tax which may be payable in respect of any transfer or delivery of Rights Certificates to a Person other than, or the issuance or delivery of a number of one three-hundredths of a share of Preferred Stock (or Common Stock and/or other securities, as the case may be) in respect of a name other than that of the registered holder of the Rights Certificates evidencing Rights surrendered for exercise or to issue or deliver any certificates for a number of one three-hundredths of a share of Preferred Stock (or Common Stock and/or ot her securities, as the case may be) in a name other than that of the registered holder upon the exercise of any Rights until such tax shall have been paid (any such tax being payable by the holder of such Rights Certificate at the time of surrender) or until it has been established to the Company's satisfaction that no such tax is due. |
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Section 10. Preferred Stock Record Date. Each person in whose name any certificate for a number of one three-hundredths of a share of Preferred Stock (or Common Stock and/or other securities, as the case may be) is issued upon the exercise of Rights shall for all purposes be deemed to have become the holder of record of such fractional shares of Preferred Stock (or Common Stock and/or other securities, as the case may be) represented thereby on, and such certificate shall be dated, the date upon which the Rights Certificate evidencing such Rights was duly surrendered and payment of the Purchase Price (and all applicable transfer taxes) was made; provided, however, that if the date of such surrender and payment is a date upon which the Preferred Stock (or Common Stock and/or other securities, as the case may be) transfer books of the Company are closed, such Person shall be deemed to have become the record holder of such shares (fractional or otherwise) on, an d such certificate shall be dated, the next succeeding Business Day on which the Preferred Stock (or Common Stock and/or other securities, as the case may be) transfer books of the Company are open. Prior to the exercise of the Rights evidenced thereby, the holder of a Rights Certificate shall not be entitled to any rights of a stockholder of the Company with respect to shares for which the Rights shall be exercisable, including, without limitation, the right to vote, to receive dividends or other distributions or to exercise any preemptive rights, and shall not be entitled to receive any notice of any proceedings of the Company, except as provided herein. | ||
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Section 11. Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. The Purchase Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to adjustment from time to time as provided in this Section 11. | ||
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(a) | (i) | In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Preferred Stock payable in shares of Preferred Stock, (B) subdivide the outstanding Preferred Stock, (C) combine the outstanding Preferred Stock into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing or surviving corporation), except as |
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otherwise provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of Preferred Stock or capital stock, as the case may be, issuable on such date, shall be proportionately adjusted so that the holder of any Right exercised after such time shall be entitled to receive, upon payment of the Purchase Price then in effect, the aggregate number and kind of shares of Preferred Stock or capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the Preferred Stock transfer books of the Company were open, such holder would have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. If an event occurs which would require an adjustment under both this Section 11(a)(i) and Se ction 11(a)(ii) hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof. | |
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(ii) | In the event any Person shall, at any time after the Rights Dividend Declaration Date, become an Acquiring Person, unless the event causing such Person to become an Acquiring Person is a transaction set forth in Section 13(a) hereof, or is an acquisition of shares of Common Stock pursuant to a tender offer or an exchange offer for all outstanding shares of Common Stock at a price and on terms determined by at least a majority of the members of the Board of Directors who are not officers of the Company and who are not representatives, nominees, Affiliates or Associates of an Acquiring Person, after receiving advice from one or more investment banking firms, to be (a) at a price which is fair to stockholders and not inadequate (taking into account all factors which such members of the Board deem relevant, including, without limitation, prices which could reasonably be achieved if the Company or its assets were sold on an orderly basis designed to realize maximum value) and (b) otherwise i n the best interests of the Company and its stockholders then, promptly following the occurrence of such event, proper provision shall be made so that each holder of a Right (except as provided below and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof at the then |
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current Purchase Price in accordance with the terms of this Agreement, in lieu of a number of one three-hundredths of a share of Preferred Stock, such number of shares of Common Stock of the Company as shall equal the result obtained by (x) multiplying the then current Purchase Price by the then number of one three-hundredths of a share of Preferred Stock for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event, and (y) dividing that product (which, following such first occurrence, shall thereafter be referred to as the "Purchase Price" for each Right and for all purposes of this Agreement) by 50% of the Current Market Price (determined pursuant to Section 11(d) hereof) per share of Common Stock on the date of such first occurrence (such number of shares, the "Adjustment Shares"). | |
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(iii) | In the event that the number of shares of Common Stock which are authorized by the Company's Restated Certificate of Incorporation, but which are not outstanding or reserved for issuance for purposes other than upon exercise of the Rights, are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company shall (A) determine the value of the Adjustment Shares issuable upon the exercise of a Right (the "Current Value"), and (B) with respect to each Right (subject to Section 7(e) hereof), make adequate provision to substitute for the Adjustment Shares, upon the exercise of a Right and payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Stock or other equity securities of the Company (including, without limitation, shares, or units of shares, of preferred stock, such as the Preferred Stock, which the Board has deemed to have the essentially same value or econ omic rights as shares of Common Stock (such shares of preferred stock being referred to as "Common Stock Equivalents")), (4) debt securities of the Company, (5) other assets, or (6) any combination of the foregoing, having an aggregate value equal to the Current Value (less the amount of any reduction in the Purchase Price), where such aggregate value has been determined by the Board based upon the advice of a nationally recognized investment banking firm selected by the Board; provided, however, that if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days following the later of (x) the first occurrence of a Section 11(a)(ii) |
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Event and (y) the date on which the Company's right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the "Section 11(a)(ii) Trigger Date"), then the Company shall be obligated to deliver, upon the surrender for exercise of a Right and without requiring payment of the Purchase Price, shares of Common Stock (to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to the Spread. For purposes of the preceding sentence, the term "Spread" shall mean the excess of (i) the Current Value over (ii) the Purchase Price. If the Board determines in good faith that it is likely that sufficient additional shares of Common Stock could be authorized for issuance upon exercise in full of the Rights, the thirty (30) day period set forth above may be extended to the extent necessary, but not more than ninety (90) days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek sharehol der approval for the authorization of such additional shares (such thirty (30) day period, as it may be extended, is herein called the "Substitution Period"). To the extent that action is to be taken pursuant to the first and/or third sentences of this Section 11(a)(iii), the Company (1) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (2) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek such shareholder approval for such authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement stating that the exercisability of the Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of each Adjustment Share shall be the current market price per share of the Common Stock on the Section 11(a)(ii) Trigger Date and the per share or per unit value of any Common Stock Equivalent shall be deemed to equal the current market price per share of the Common Stock on such date. | |
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(b) | In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred Stock entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days |
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after such record date) Preferred Stock (or shares having the same rights, privileges and preferences as the shares of Preferred Stock ("Equivalent Preferred Stock")) or securities convertible into Preferred Stock or Equivalent Preferred Stock at a price per share of Preferred Stock or per share of Equivalent Preferred Stock (or having a conversion price per share, if a security convertible into Preferred Stock or Equivalent Preferred Stock) less than the Current Market Price (as determined pursuant to Section 11(d) hereof) per share of Preferred Stock on such record date, the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Preferred Stock outstanding on such record date, plus the number of shares of Preferred Stock which the aggregate offering price of the total number of shares of Preferred Stock and/or Equiv alent Preferred Stock so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such Current Market Price, and the denominator of which shall be the number of shares of Preferred Stock outstanding on such record date, plus the number of additional shares of Preferred Stock and/or Equivalent Preferred Stock to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). In case such subscription price may be paid by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Shares of Preferred Stock owned by or held for the account of the Company shall not be deemed outstanding for the purpos e of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed. | ||
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(c) | In case the Company shall fix a record date for a distribution to all holders of Preferred Stock (including any such distribution made in connection with a consolidation or |
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merger in which the Company is the continuing corporation) of evidences of indebtedness, cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Preferred Stock, but including any dividend payable in stock other than Preferred Stock) or evidences of indebtedness, or of subscription rights or warrants (excluding those referred to in Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the Current Market Price (as determined pursuant to Section 11(d) hereof) per share of Preferred Stock on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Preferred Stock, and the denominator of which shall be such Current Market Price (as determined pursuant to Section 11(d) hereof) per share of Preferred Stock. Such adjustments shall be made successively whenever such a record date is fixed, and in the event that such distribution is not so made, the Purchase Price shall be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. | ||
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(d) | (i) | For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii) hereof, the Current Market Price per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the thirty (30) consecutive Trading Days immediately prior to such date, and for purposes of computations made pursuant to Section 11(a)(iii) hereof, the Current Market Price per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the ten (10) consecutive Trading Days immediately following such date; provided, however, that in the event that the Current Market Price per share of the Common Stock is determined during a period following the announcement by the issuer of such Common Stock of (A) a dividend or distribution on such Common Stock payable in shares of such Common Stock or securities |
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convertible into shares of such Common Stock (other than the Rights), or (B) any subdivision, combination or reclassification of such Common Stock, and the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination or reclassification shall not have occurred prior to the commencement of the requisite thirty (30) Trading Day or ten (10) Trading Day Period, as set forth above, then, and in each such case, the Current Market Price shall be properly adjusted to take into account ex-dividend trading. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the New York Stock Exchange or, if the shares of Common Stock are not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the shares of Common Stock are listed or admitted to trading or, if the shares of Common Stock are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices in the over-the-counter market, as reported by the National Association of Securities Dealers Automated Quotation System ("NASDAQ") or such other system then in use, or, if on any such date the shares of Common Stock are not quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Common Stock selected by the Board. If on any such date no market maker is making a market in the Common Stock, the fair value of such shares on such date as determined in good faith by the Board shall be used. The te rm "Trading Day" shall mean a day on which the principal national securities exchange on which the shares of Common Stock are listed or admitted to trading is open for the transaction of business or, if the shares of Common Stock are not listed or admitted to trading on any national securities exchange, a Business Day. If the Common Stock is not publicly held or not so listed or traded, Current Market Price per share shall mean the fair value per share as determined in good faith by the Board, whose determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposes. |
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(ii) | For the purpose of any computation hereunder, the Current Market Price per share of Preferred Stock shall be determined in the same manner as set forth above for the Common Stock in clause (i) of this Section 11(d) (other than the last sentence thereof). If the Current Market Price per share of Preferred Stock cannot be determined in the manner provided above or if the Preferred Stock is not publicly held or listed or traded in a manner described in clause (i) of this Section 11(d), the Current Market Price per share of Preferred Stock shall be conclusively deemed to be an amount equal to 100 (as such number may be appropriately adjusted for such events as stock splits, stock dividends and recapitalizations with respect to the Common Stock occurring after the date of this Agreement) multiplied by the Current Market Price per share of the Common Stock. If neither the Common Stock nor the Preferred Stock is publicly held or so listed or traded, Current Market Price per share of the Prefer red Stock shall mean the fair value per share as determined in good faith by the Board, whose determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposes. For all purposes of this Agreement, the Current Market Price of a Unit shall be equal to the Current Market Price of one share of Preferred Stock divided by 100. | |
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(e) | Anything herein to the contrary notwithstanding, no adjustment in the Purchase Price shall be required unless such adjustment would require an increase or decrease of at least one percent (1%) in the Purchase Price; provided, however, that any adjustments which by reason of this Section 11(e) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 11 shall be made to the nearest cent or to the nearest ten-thousandth of a share of Common Stock or other share or one-millionth of a share of Preferred Stock, as the case may be. Notwithstanding the first sentence of this Section 11(e), any adjustment required by this Section 11 shall be made no later than the earlier of (i) three (3) years from the date of the transaction which mandates such adjustment, or (ii) the Expiration Date. | |
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(f) | If as a result of an adjustment made pursuant to Section 11(a)(ii) or Section 13(a) hereof, the holder of any Right thereafter exercised shall become entitled to receive any |
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shares of capital stock other than Preferred Stock, thereafter the number of such other shares so receivable upon exercise of any Right and the Purchase Price thereof shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Preferred Stock contained in Sections 11(a), (b), (c), (e), (g), (h), (i), (j), (k) and (m), and the provisions of Sections 7, 9, 10, 13 and 14 hereof with respect to the Preferred Stock shall apply on like terms to any such other shares. | |
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(g) | All Rights originally issued by the Company subsequent to any adjustment made to the Purchase Price hereunder shall evidence the right to purchase, at the adjusted Purchase Price, the number of one three-hundredths of a share of Preferred Stock purchasable from time to time hereunder upon exercise of the Rights, all subject to further adjustment as provided herein. |
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(h) | Unless the Company shall have exercised its election as provided in Section 11(i), upon each adjustment of the Purchase Price as a result of the calculations made in Sections 11(b) and (c), each Right outstanding immediately prior to the making of such adjustment shall thereafter evidence the right to purchase, at the adjusted Purchase Price, that number of one three-hundredths of a share of Preferred Stock (calculated to the nearest one-millionth) obtained by (i) multiplying (x) the number of one three-hundredths of a share covered by a Right immediately prior to this adjustment, by (y) the Purchase Price in effect immediately prior to such adjustment of the Purchase Price, and (ii) dividing the product so obtained by the Purchase Price in effect immediately after such adjustment of the Purchase Price. |
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(i) | The Company may elect on or after the date of any adjustment of the Purchase Price to adjust the number of Rights, in lieu of any adjustment in the number of one three- hundredths of a share of Preferred Stock purchasable upon the exercise of a Right. Each of the Rights outstanding after the adjustment in the number of Rights shall be exercisable for the number of one three-hundredths of a share of Preferred Stock for which a Right was exercisable immediately prior to such adjustment. Each Right held of record prior to such adjustment of the number of Rights shall become that number of Rights |
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(calculated to the nearest one-ten-thousandth) obtained by dividing the Purchase Price in effect immediately prior to adjustment of the Purchase Price by the Purchase Price in effect immediately after adjustment of the Purchase Price. The Company shall make a public announcement of its election to adjust the number of Rights, indicating the record date for the adjustment, and, if known at the time, the amount of the adjustment to be made. This record date may be the date on which the Purchase Price is adjusted or any day thereafter, but, if the Rights Certificates have been issued, shall be at least ten (10) days later than the date of the public announcement. If Rights Certificates have been issued, upon each adjustment of the number of Rights pursuant to this Section 11(i), the Company shall, as promptly as practicable, cause to be distributed to holders of record of Rights Certificates on such record date Rights Certificates evidencing, subject to Section 14 hereof, the additional Ri ghts to which such holders shall be entitled as a result of such adjustment, or, at the option of the Company, shall cause to be distributed to such holders of record in substitution and replacement for the Rights Certificates held by such holders prior to the date of adjustment, and upon surrender thereof, if required by the Company, new Rights Certificates evidencing all the Rights to which such holders shall be entitled after such adjustment. Rights Certificates so to be distributed shall be issued, executed and countersigned in the manner provided for herein (and may bear, at the option of the Company, the adjusted Purchase Price) and shall be registered in the names of the holders of record of Rights Certificates on the record date specified in the public announcement. | |
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(j) | Irrespective of any adjustment or change in the Purchase Price or the number of one three-hundredths of a share of Preferred Stock issuable upon the exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue to express the Purchase Price per one three-hundredth of a share and the number of one three-hundredths of a share which were expressed in the initial Rights Certificates issued hereunder. |
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(k) | Before taking any action that would cause an adjustment reducing the Purchase Price below the then stated value, if any, of the number of one three-hundredths of a share |
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of Preferred Stock issuable upon exercise of the Rights, the Company shall take any corporate action which may, in the opinion of its counsel, be necessary in order that the Company may validly and legally issue fully paid and non-assessable such number of one three-hundredths of a share of Preferred Stock at such adjusted Purchase Price. | |
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(l) | In any case in which this Section 11 shall require that an adjustment in the Purchase Price be made effective as of a record date for a specified event, the Company may elect to defer until the occurrence of such event the issuance to the holder of any Right exercised after such record date the number of one three-hundredths of a share of Preferred Stock and other capital stock or securities of the Company, if any, issuable upon such exercise over and above the number of one three- hundredths of a share of Preferred Stock and other capital stock or securities of the Company, if any, issuable upon such exercise on the basis of the Purchase Price in effect prior to such adjustment; provided, however, that the Company shall deliver to such holder a due bill or other appropriate instrument evidencing such holder's right to receive such additional shares (fractional or otherwise) or securities upon the occurrence of the event requiring such adjustment. |
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(m) | Anything in this Section 11 to the contrary notwithstanding, the Company shall be entitled to make such reductions in the Purchase Price, in addition to those adjustments expressly required by this Section 11, as and to the extent that in their good faith judgment the Board of Directors of the Company shall determine to be advisable in order that any (i) consolidation or subdivision of the Preferred Stock, (ii) issuance wholly for cash of any shares of Preferred Stock at less than the Current Market Price, (iii) issuance wholly for cash of shares of Preferred Stock or securities which by their terms are convertible into or exchangeable for shares of Preferred Stock, (iv) stock dividends or (v) issuance of rights, options or warrants referred to in this Section 11, hereafter made by the Company to holders of its Preferred Stock shall not be taxable to such stockholders. |
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(n) | The Company covenants and agrees that it shall not, at any time after the Distribution Date, (i) consolidate with |
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any other Person (other than a Subsidiary of the Company in a transaction which complies with Section 11(o) hereof), (ii) merge with or into any other Person (other than a Subsidiary of the Company in a transaction which complies with Section 11(o) hereof), or (iii) sell or transfer (or permit any Subsidiary to sell or transfer), in one transaction, or a series of related transactions, assets or earning power aggregating more than 50% of the assets or earning power of the Company and its Subsidiaries (taken as a whole) to any other Person or Persons (other than the Company and/or any of its Subsidiaries in one or more transactions each of which complies with Section 11(o) hereof), if (x) at the time of or immediately after such consolidation, merger or sale there are any rights, warrants or other instruments or securities outstanding or agreements in effect which would substantially diminish or otherwise eliminate the benefits intended to be afforded by the Rights or (y) prior to, simul taneously with or immediately after such consolidation, merger or sale, the shareholders of the Person who constitutes, or would constitute, the "Principal Party" for purposes of Section 13(a) hereof shall have received a distribution of Rights previously owned by such Person or any of its Affiliates and Associates. | |
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(o) | The Company covenants and agrees that, after the Distribution Date, it will not, except as permitted by Section 23 or Section 26 hereof, take (or permit any Subsidiary to take) any action if at the time such action is taken it is reasonably foreseeable that such action will diminish substantially or otherwise eliminate the benefits intended to be afforded by the Rights. |
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(p) | Anything in this Agreement to the contrary notwithstanding, in the event that the Company shall at any time after the Rights Dividend Declaration Date and prior to the Distribution Date (i) declare a dividend on the outstanding shares of Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding shares of Common Stock, or (iii) combine the outstanding shares of Common Stock into a smaller number of shares, the number of Rights associated with each share of Common Stock then outstanding, or issued or delivered thereafter but prior to the Distribution Date, shall be proportionately adjusted so that the number of Rights thereafter associated with each share of Common Stock following |
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any such event shall equal the result obtained by multiplying the number of Rights associated with each share of Common Stock immediately prior to such event by a fraction the numerator which shall be the total number of shares of Common Stock outstanding immediately prior to the occurrence of the event and the denominator of which shall be the total number of shares of Common Stock outstanding immediately following the occurrence of such event. | |
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Section 12. Certificate of Adjusted Purchase Price or Number of Shares. Whenever an adjustment is made as provided in Section 11 and Section 13 hereof, the Company shall (a) promptly prepare a certificate setting forth such adjustment and a brief statement of the facts accounting for such adjustment, (b) promptly file with the Rights Agent, and with each transfer agent for the Preferred Stock and the Common Stock, a copy of such certificate, and (c) if a Distribution Date has occurred, mail a brief summary thereof to each holder of a Rights Certificate in accordance with Section 26 hereof. The Rights Agent shall be fully protected in relying on any such certificate and on any adjustment therein contained and shall not be deemed to have knowledge of such adjustment unless and until it shall have received such certificate. | |
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Section 13. Consolidation, Merger or Sale or Transfer of Assets or Earning Power. | |
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(a) | In the event that, following the Stock Acquisition Date, directly or indirectly, (x) the Company shall consolidate with, or merge with and into, any other Person (other than a Subsidiary of the Company in a transaction which complies with Section 11(o) hereof), and the Company shall not be the continuing or surviving corporation of such consolidation or merger, (y) any Person (other than a Subsidiary of the Company in a transaction which complies with Section 11(o) hereof) shall consolidate with, or merge with or into, the Company, and the Company shall be the continuing or surviving corporation of such consolidation or merger and, in connection with such consolidation or merger, all or part of the outstanding shares of Common Stock shall be changed into or exchanged for stock or other securities of any other Person or cash or any other property, or (z) the Company shall sell or otherwise transfer (or one or more of its Subsidiaries shall sell or otherwise |
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transfer), in one transaction or a series of related transactions, assets or earning power aggregating more than 50% of the assets or earning power of the Company and its Subsidiaries (taken as a whole) to any Person or Persons (other than the Company or any Subsidiary of the Company in one or more transactions each of which complies with Section 11(o) hereof), then, and in each such case (except as may be contemplated by Section 13(d) hereof), proper provision shall be made so that: (i) each holder of a Right, except as provided in Section 7(e) hereof, shall thereafter have the right to receive, upon the exercise thereof at the then current Purchase Price in accordance with the terms of this Agreement, such number of validly authorized and issued, fully paid, non- assessable and freely tradable shares of Common Stock of the Principal Party (as such term is hereinafter defined), not subject to any liens, encumbrances, rights of first refusal or other adverse claims, as shall be equal to the result obtained by (1) multiplying the then current Purchase Price by the number of one three-hundredths of a share of Preferred Stock for which a Right is exercisable immediately prior to the first occurrence of a Section 13 Event (or, if a Section 11(a)(ii) Event has occurred prior to the first occurrence of a Section 13 Event, multiplying the number of such one three-hundredths of a share for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event by the Purchase Price in effect immediately prior to such first occurrence), and dividing that product (which, following the first occurrence of a Section 13 Event, shall be referred to as the "Purchase Price" for each Right and for all purposes of this Agreement) by (2) 50% of the Current Market Price (determined pursuant to Section 11(d)(i) hereof) per share of the Common Stock of such Principal Party on the date of consummation of such Section 13 Event; (ii) such Principal Party shall thereafter be liable for, and shall assume, by virtue of such Section 13 Event, all the obligations and duties of the Company pursuant to this Agreement; (iii) the term "Company" shall thereafter be deemed to refer to such Principal Party, it being specifically intended that the provisions of Section 11 hereof shall apply only to such Principal Party following the first occurrence of a Section 13 Event; (iv) such Principal Party shall take such steps (including, but not limited to, the reservation of a sufficient number of shares of its Common Stock) in connection with the consummation of any such transaction as may be necessary to assure that the |
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provisions hereof shall thereafter be applicable, as nearly as reasonably may be, in relation to its shares of Common Stock thereafter deliverable upon the exercise of the Rights; and (v) the provisions of Section 11(a)(ii) hereof shall be of no effect following the first occurrence of any Section 13 Event. | ||
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(b) | "Principal Party" shall mean: | |
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(i) | in the case of any transaction described in clause (x) or (y) of the first sentence of Section 13(a), the Person that is the issuer of any securities into which shares of Common Stock of the Company are converted in such merger or consolidation, and if no securities are so issued, the Person that is the other party to such merger or consolidation; and |
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(ii) | in the case of any transaction described in clause (z) of the first sentence of Section 13(a), the Person that is the party receiving the greatest portion of the assets or earning power transferred pursuant to such transaction or transactions; |
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provided, however, that in any such case, (1) if the Common Stock of such Person is not at such time and has not been continuously over the preceding twelve (12) month period registered under Section 12 of the Exchange Act, and such Person is a direct or indirect Subsidiary of another Person the Common Stock of which is and has been so registered, "Principal Party" shall refer to such other person; and (2) in case such Person is a Subsidiary, directly or indirectly, of more than one Person, the Common Stocks of two or more of which are and have been so registered, "Principal Party" shall refer to whichever of such Persons is the issuer of the Common Stock having the greatest aggregate market value. |
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(c) | The Company shall not consummate any such consolidation, merger, sale or transfer unless the Principal Party shall have a sufficient number of authorized shares of its Common Stock which have not been issued or reserved for issuance to permit the exercise in full of the Rights in accordance with this Section 13 and unless prior thereto the Company and such Principal Party shall have executed and delivered to the Rights Agent a supplemental agreement providing for the terms set forth in paragraphs (a) and (b) of this Section 13 and further providing that, as soon as |
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practicable after the date of any consolidation, merger or sale of assets mentioned in paragraph (a) of this Section 13, the Principal Party will | ||
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(i) | prepare and file a registration statement under the Act, with respect to the Rights and the securities purchasable upon exercise of the Rights on an appropriate form, and will use its best efforts to cause such registration statement to (A) become effective as soon as practicable after such filing and (B) remain effective (with a prospectus at all times meeting the requirements of the Act) until the Expiration Date; |
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(ii) | ) take all such other action as may be necessary to enable the Principal Party to issue the securities purchasable upon exercise of the Rights, including but not limited to the registration or qualification of such securities under all requisite securities laws of jurisdictions of the various states and the listing of such securities on such exchanges and trading markets as may be necessary or appropriate; and |
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(iii) | will deliver to holders of the Rights historical financial statements for the Principal Party and each of its Affiliates which comply in all respects with the requirements for registration on Form 10 under the Exchange Act. |
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The provisions of this Section 13 shall similarly apply to successive mergers or consolidations or sales or other transfers. In the event that a Section 13 Event shall occur at any time after the occurrence of a Section 11(a)(ii) Event, the Rights which have not theretofore been exercised shall thereafter become exercisable in the manner described in Section 13(a). |
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(d) | Notwithstanding anything in this Agreement to the contrary, Section 13 shall not be applicable to a transaction described in subparagraphs (x) and (y) of Section 13(a) if (i) such transaction is consummated with a Person or Persons who acquired shares of Common Stock pursuant to a tender offer or exchange offer for all outstanding shares of Common Stock which complies with the provisions of Section 11(a)(ii) hereof (or a wholly owned subsidiary of any such Person or Persons), (ii) |
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the price per share of Common Stock offered in such transaction is not less than the price per share of Common Stock paid to all holders of shares of Common Stock whose shares were purchased pursuant to such tender offer or exchange offer, and (iii) the form of consideration being offered to the remaining holders of shares of Common Stock pursuant to such transaction is the same as the form of consideration paid pursuant to such tender offer or exchange offer. Upon consummation of any such transaction contemplated by this Section 13(d), all Rights hereunder shall expire. | ||
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Section 14. Fractional Rights and Fractional Shares. | ||
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(a) | The Company shall not be required to issue fractions of Rights, except prior to the Distribution Date as provided in Section 11(p) hereof, or to distribute Rights Certificates which evidence fractional Rights. In lieu of such fractional Rights, the Company shall pay to the registered holders of the Rights Certificates with regard to which such fractional Rights would otherwise be issuable, an amount in cash equal to the same fraction of the current market value of a whole Right. For purposes of this Section 14(a), the current market value of a whole Right shall be the closing price of the Rights for the Trading Day immediately prior to the date on which such fractional Rights would have been otherwise issuable. The closing price of the Rights for any day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting sy stem with respect to securities listed or admitted to trading on the New York Stock Exchange or, if the Rights are not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Rights are listed or admitted to trading, or if the Rights are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices in the over-the-counter market, as reported by NASDAQ or such other system then in use or, if on any such date the Rights are not quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Rights, |
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selected by the Board of Directors of the Company. If on any such date no such market maker is making a market in the Rights, the fair value of the Rights on such date as determined in good faith by the Board of Directors of the Company shall be used. | |
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(b) | the Company shall not be required to issue fractions of shares of Preferred Stock (other than fractions which are integral multiples of one three-hundredth of a share of Preferred Stock) upon exercise of the Rights or to distribute certificates which evidence fractional shares of Preferred Stock (other than fractions which are integral multiples of one three-hundredth of a share of Preferred Stock). In lieu of fractional shares of Preferred Stock that are not integral multiples of one three-hundredth of a share of Preferred Stock, the Company may pay to the registered holders of Rights Certificates at the time such Rights are exercised as herein provided an amount in cash equal to the same fraction of the current market value of one three-hundredth of a share of Preferred Stock. For purposes of this Section 14(b), the current market value of one three-hundredth of a share of Preferred Stock shall be one three-hundredth of the closing price of a share of Preferred Stock (as determined pu rsuant to Section 11(d)(ii) hereof) for the Trading Day immediately prior to the date of such exercise. |
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(c) | Following the occurrence of a Triggering Event, the Company shall not be required to issue fractions of shares of Common Stock upon exercise of the Rights or to distribute certificates which evidence fractional shares of Common Stock. In lieu of fractional shares of Common Stock, the Company may pay to the registered holders of Rights Certificates at the time such Rights are exercised as herein provided an amount in cash equal to the same fraction of the current market value of one (1) share of Common Stock. For purposes of this Section 14(c), the current market value of one share of Common Stock shall be the closing price of one share of Common Stock (as determined pursuant to Section 11(d)(i) hereof) for the Trading Day immediately prior to the date of such exercise. |
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(d) | The holder of a Right by the acceptance of the Rights expressly waives his right to receive any fractional Rights or any fractional shares upon exercise of a Right, except as permitted by this Section 14. |
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Section 15. Rights of Action. All rights of action in respect of this Agreement are vested in the respective registered holders of the Rights Certificates (and, prior to the Distribution Date, the registered holders of the Common Stock); and any registered holder of any Rights Certificate (or, prior to the Distribution Date, of the Common Stock), without the consent of the Rights Agent or of the holder of any other Rights Certificate (or, prior to the Distribution Date, of the Common Stock), may, in his own behalf and for his own benefit, enforce, and may institute and maintain any suit, action or proceeding against the Company to enforce, or otherwise act in respect of, his right to exercise the Rights evidenced by such Rights Certificate in the manner provided in such Rights Certificate and in this Agreement. Without limiting the foregoing or any remedies available to the holders of Rights, it is specifically acknowledged that the holders of Rights would no t have an adequate remedy at law for any breach of this Agreement and shall be entitled to specific performance of the obligations hereunder and injunctive relief against actual or threatened violations of the obligations hereunder of any Person subject to this Agreement. | |
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Section 16. Agreement of Rights Holders. Every holder of a Right by accepting the same consents and agrees with the Company and the Rights Agent and with every other holder of a Right that: | |
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(a) | prior to the Distribution Date, the Rights will be transferable only in connection with the transfer of Common Stock; |
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(b) | after the Distribution Date, the Rights Certificates are transferable only on the registry books of the Rights Agent if surrendered at the principal office or offices of the Rights Agent designated for such purposes, duly endorsed or accompanied by a proper instrument of transfer and with the appropriate forms and certificates fully executed; |
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(c) | subject to Section 6(a) and Section 7(f) hereof, the Company and the Rights Agent may deem and treat the person in whose name a Rights Certificate (or, prior to the Distribution Date, the associated Common Stock certificate) is registered as the absolute owner thereof and of the Rights evidenced thereby (notwithstanding any notations of ownership or writing on the |
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Rights Certificates or the associated Common Stock certificate made by anyone other than the Company or the Rights Agent) for all purposes whatsoever, and neither the Company nor the Rights Agent, subject to the last sentence of Section 7(e) hereof, shall be required to be affected by any notice to the contrary; and | |
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(d) | notwithstanding anything in this Agreement to the contrary, neither the Company nor the Rights Agent shall have any liability to any holder of a Right or other Person as a result of its inability to perform any of its obligations under this Agreement by reason of any preliminary or permanent injunction or other order, decree or ruling issued by a court of competent jurisdiction or by a governmental, regulatory or administrative agency or commission, or any statute, rule, regulation or executive order promulgated or enacted by any governmental authority, prohibiting or otherwise restraining performance of such obligation; provided, however, the Company must use its best efforts to have any such order, decree or ruling lifted or otherwise overturned as soon as possible. |
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Section 17. Rights Certificate Holder Not Deemed a Stockholder. No holder, as such, of any Rights Certificate shall be entitled to vote, receive dividends or be deemed for any purpose the holder of the number of one three-hundredths of a share of Preferred Stock or any other securities of the Company which may at any time be issuable on the exercise of the Rights represented thereby, nor shall anything contained herein or in any Rights Certificate be construed to confer upon the holder of any Rights Certificate, as such, any of the rights of a stockholder of the Company or any right to vote for the election of directors or upon any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any corporate action, or to receive notice of meetings or other actions affecting stockholders (except as provided in Section 25 hereof), or to receive dividends or subscription rights, or otherwise, until the Right or Rights evidenced by suc h Rights Certificate shall have been exercised in accordance with the provisions hereof. | |
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Section 18. Concerning the Rights Agent. | |
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(a) | The Company agrees to pay to the Rights Agent reasonable compensation for all services rendered by it |
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hereunder and, from time to time, on demand of the Rights Agent, its reasonable expenses and counsel fees and disbursements and other disbursements incurred in the administration and execution of this Agreement and the exercise and performance of its duties hereunder. The Company also agrees to indemnify the Rights Agent for, and to hold it harmless against, any loss, liability, or expense, incurred without negligence, bad faith or willful misconduct on the part of the Rights Agent, for anything done or omitted by the Rights Agent in connection with the acceptance and administration of this Agreement, including the costs and expenses of defending against any claim of liability in the premises. | |
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(b) | The Rights Agent shall be protected and shall incur no liability for or in respect of any action taken, suffered or omitted by it in connection with its administration of this Agreement in reliance upon any Rights Certificate or certificate for Common Stock or for other securities of the Company, instrument of assignment or transfer, power of attorney, endorsement, affidavit, letter, notice, direction, consent, certificate, statement, or other paper or document believed by it to be genuine and to be signed, executed and, where necessary, verified or acknowledged, by the proper Person or Persons. |
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Section 19. Merger or Consolidation or Change of Name of Rights Agent. | |
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(a) | Any corporation into which the Rights Agent or any successor Rights Agent may be merged or with which it may be consolidated, or any corporation resulting from any merger or consolidation to which the Rights Agent or any successor Rights Agent shall be a party, or any corporation succeeding to all, or substantially all, the corporate trust, stock transfer or other shareholder services business of the Rights Agent or any successor Rights Agent, shall be the successor to the Rights Agent under this Agreement without the execution or filing of any paper or any further act on the part of any of the parties hereto; but only if such corporation would be eligible for appointment as a successor Rights Agent under the provisions of Section 21 hereof. In case at the time such successor Rights Agent shall succeed to the agency created by this Agreement, any of the Rights Certificates shall have been countersigned but not delivered, any such successor Rights Agent may adopt |
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the countersignature of a predecessor Rights Agent and deliver such Rights Certificates so countersigned; and in case at that time any of the Rights Certificates shall not have been countersigned, any successor Rights Agent may countersign such Rights Certificates either in the name of the predecessor or in the name of the successor Rights Agent; and in all such cases such Rights Certificates shall have the full force provided in the Rights Certificates and in this Agreement. | |
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(b) | In case at any time the name of the Rights Agent shall be changed and at such time any of the Rights Certificates shall have been countersigned but not delivered, the Rights Agent may adopt the countersignature under its prior name and deliver Rights Certificates so countersigned; and in case at that time any of the Rights Certificates shall not have been countersigned, the Rights Agent may countersign such Rights Certificates either in its prior name or in its changed name; and in all such cases such Rights Certificates shall have the full force provided in the Rights Certificates and in this Agreement. |
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Section 20. Duties of Rights Agent. The Rights Agent undertakes the duties and obligations imposed by this Agreement upon the following terms and conditions, by all of which the Company and the holders of Rights Certificates, by their acceptance thereof, shall be bound: | |
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(a) | The Rights Agent may consult with legal counsel (who may be legal counsel for the Company), and the opinion of such counsel shall be full and complete authorization and protection to the Rights Agent as to any action taken or omitted by it in good faith and in accordance with such opinion. |
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(b) | Whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter (including, without limitation, the identity of any Acquiring Person and the determination of Current Market Price) be proved or established by the Company prior to taking or suffering any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate signed by the Chairman of the Board, the President, any Vice President, the Treasurer, any Assistant Treasurer, the Secretary or any Assistant |
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Secretary of the Company and delivered to the Rights Agent; and such certificate shall be full authorization to the Rights Agent for any action taken or suffered in good faith by it under the provisions of this Agreement in reliance upon such certificate. | |
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(c) | The Rights Agent shall be liable hereunder only for its own negligence, bad faith or willful misconduct. |
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(d) | The Rights Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the Rights Certificates or be required to verify the same (except as to its countersignature on such Rights Certificates), but all such statements and recitals are and shall be deemed to have been made by the Company only. |
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(e) | The Rights Agent shall not be under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof (except the due execution hereof by the Rights Agent) or in respect of the validity or execution of any Rights Certificate (except its countersignature thereof); nor shall it be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Rights Certificate; nor shall it be responsible for any adjustment required under the provisions of Section 11, Section 13 or Section 24 hereof or responsible for the manner, method or amount of any such adjustment or the ascertaining of the existence of facts that would require any such adjustment (except with respect to the exercise of Rights evidenced by Rights Certificates after actual notice of any such adjustment); nor shall it by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of any shares of Common Stock or Preferred Stock to be issued pursuant to this Agreement or any Rights Certificate or as to whether any shares of Common Stock or Preferred Stock will, when so issued, be validly authorized and issued, fully paid and non-assessable. |
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(f) | The Company agrees that it will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement. |
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(g) | The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its duties hereunder from the Chairman of the Board, the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer or any Assistant Treasurer of the Company, and to apply to such officers for advice or instructions in connection with its duties, and it shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with instructions of any such officer. |
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(h) | The Rights Agent and any stockholder, director, officer or employee of the Rights Agent may buy, sell or deal in any of the Rights or other securities of the Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company or otherwise act as fully and freely as though it were not Rights Agent under this Agreement. Nothing herein shall preclude the Rights Agent from acting in any other capacity for the Company or for any other legal entity. |
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(i) | The Rights Agent may execute and exercise any of the rights or powers hereby vested in it or perform any duty hereunder either itself or by or through its attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorneys or agents or for any loss to the Company resulting from any such act, default, neglect or misconduct; provided, however, reasonable care was exercised in the selection and continued employment thereof. |
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(j) | No provision of this Agreement shall require the Rights Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of its rights if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assured to it. |
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(k) | If, with respect to any Right Certificate surrendered to the Rights Agent for exercise or transfer, the certificate attached to the form of assignment or form of election to purchase, as the case may be, has either not been completed or indicates an affirmative response to clause 1 and/or 2 thereof, the Rights Agent shall not take any further |
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action with respect to such requested exercise of transfer without first consulting with the Company. | |
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(l) | The Company agrees to give the Rights Agent prompt written notice of any event or ownership which would prohibit the exercise or transfer of the Rights Certificates. |
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Section 21. Change of Rights Agent. The Rights Agent or any successor Rights Agent may resign and be discharged from its duties under this Agreement upon thirty (30) days' notice in writing mailed to the Company, and to each transfer agent of the Common Stock and Preferred Stock, by registered or certified mail, and, if such resignation occurs after the Distribution Date, to the registered holders of the Rights Certificates by first-class mail. The Company may remove the Rights Agent or any successor Rights Agent upon thirty (30) days' notice in writing, mailed to the Rights Agent or successor Rights Agent, as the case may be, and to each transfer agent of the Common Stock and Preferred Stock, by registered or certified mail, and, if such removal occurs after the Distribution Date, to the holders of the Rights Certificates by first-class mail. If the Rights Agent shall resign or be removed or shall otherwise become incapable of acting, the Company shall appoi nt a successor to the Rights Agent. If the Company shall fail to make such appointment within a period of thirty (30) days after giving notice of such removal or after it has been notified in writing of such resignation or incapacity by the resigning or incapacitated Rights Agent or by the holder of a Rights Certificate (who shall, with such notice, submit his Rights Certificate for inspection by the Company), then any registered holder of any Rights Certificate may apply to any court of competent jurisdiction for the appointment of a new Rights Agent. Any successor Rights Agent, whether appointed by the Company or by such a court, shall be (a) a legal business entity organized and doing business under the laws of the United States or of the State of New York or of any other state of the United States, in good standing, having an office in the State of New York, which is authorized under such laws to exercise corporate trust or stock transfer or shareholders services powers and which has at the time of its a ppointment as Rights Agent a combined capital and surplus of at least $100,000,000 or (b) an affiliate of a legal business entity described in clause (a) of this sentence. After appointment, the successor Rights Agent |
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shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named as Rights Agent without further act or deed; but the predecessor Rights Agent shall deliver and transfer to the successor Rights Agent any property at the time held by it hereunder, and execute and deliver any further assurance, conveyance, act or deed necessary for the purpose. Not later than the effective date of any such appointment, the Company shall file notice thereof in writing with the predecessor Rights Agent and each transfer agent of the Common Stock and the Preferred Stock, and, if such appointment occurs after the Distribution Date, mail a notice thereof in writing to the registered holders of the Rights Certificates. Failure to give any notice provided for in this Section 21, however, or any defect therein, shall not affect the legality or validity of the resignation or removal of the Rights Agent or the appointment of the successor Rights Agent, as the case may be. |
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Section 22. Issuance of New Rights Certificates. Notwithstanding any of the provisions of this Agreement or of the Rights to the contrary, the Company may, at its option, issue new Rights Certificates evidencing Rights in such form as may be approved by the Board of Directors to reflect any adjustment or change in the Purchase Price and the number or kind or class of shares or other securities or property purchasable under the Rights Certificates made in accordance with the provisions of this Agreement. In addition, in connection with the issuance or sale of shares of Common Stock following the Distribution Date and prior to the redemption or expiration of the Rights, the Company (a) shall, with respect to shares of Common Stock so issued or sold pursuant to the exercise of stock options or under any employee plan or arrangement, granted or awarded as of the Distribution Date, or upon the exercise, conversion or exchange of securities hereinafter issued by th e Company, and (b) may, in any other case, if deemed necessary or appropriate by the Board of Directors of the Company, issue Rights Certificates representing the appropriate number of Rights in connection with such issuance or sale; provided, however, that (i) no such Rights Certificate shall be issued if, and to the extent that, the Company shall be advised by counsel that such issuance would create a significant risk of material adverse tax consequences to the Company or the Person to whom such Rights Certificate would be issued, and (ii) no such Rights |
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Certificate shall be issued if, and to the extent that, appropriate adjustment shall otherwise have been made in lieu of the issuance thereof. | |
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Section 23. Redemption and Termination. | |
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(a) | The Board of Directors of the Company may, at its option, at any time prior to the earlier of (i) the close of business on the tenth day following the Stock Acquisition Date (or, if the Stock Acquisition Date shall have occurred prior to the Record Date, the close of business on the tenth day following the Record Date), or (ii) the Final Expiration Date, redeem all but not less than all the then outstanding Rights at a redemption price of $.01 per Right, as such amount may be appropriately adjusted to reflect any stock split, stock dividend or similar transaction occurring after the date hereof (such redemption price being hereinafter referred to as the "Redemption Price"). Notwithstanding anything contained in this Agreement to the contrary, the Rights shall not be exercisable after the first occurrence of a Section 11(a)(ii) Event until such time as the Company's right of redemption hereunder has expired. The Company may, at its option, pay the Redemption Price in cash, shares of Comm on Stock (based on the Current Market Price, as defined in Section 11(d)(i) hereof, of the Common Stock at the time of redemption) or any other form of consideration deemed appropriate by the Board of Directors. |
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(b) | Immediately upon the action of the Board of Directors of the Company ordering the redemption of the Rights, evidence of which shall have been filed with the Rights Agent and without any further action and without any notice, the right to exercise the Rights will terminate and the only right thereafter of the holders of Rights shall be to receive the Redemption Price for each Right so held. Promptly after the action of the Board of Directors ordering the redemption of the Rights, the Company shall give notice of such redemption to the Rights Agent and the holders of the then outstanding Rights by mailing such notice to all such holders at each holder's last address as it appears upon the registry books of the Rights Agent or, prior to the Distribution Date, on the registry books of the transfer agent for the Common Stock. Any notice which is mailed in the manner herein provided shall be deemed given, whether or not the holder receives the notice. Each such notice of redemption will state the method by which the payment of the Redemption Price will be made. |
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Section 24. Exchange. | |
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(a) | The Board of Directors of the Company may, at its option, at any time after any Person becomes an Acquiring Person, exchange all or part of the then outstanding and exercisable Rights (which shall not include Rights that have become void pursuant to the provisions of Section 7(e) hereof) for Common Stock at an exchange ratio of one share of Common Stock per Right, appropriately adjusted to reflect any stock split, stock dividend or similar transaction occurring after the date hereof (such exchange ratio being hereinafter referred to as the "Exchange Ratio"). Notwithstanding the foregoing, the Board of Directors of the Company shall not be empowered to effect such exchange at any time after any Person (other than the Company, any Subsidiary of the Company, any employee benefit plan of the Company or any such Subsidiary, or any entity holding Common Stock for or pursuant to the terms of any such plan), together with all Affiliates and Associates of such Person, becomes the Beneficial Owne r of 50% or more of the Common Stock then outstanding. |
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(b) | Immediately upon the action of the Board of Directors of the Company ordering the exchange of any Rights pursuant to subsection (a) of this Section 24 and without any further action and without any notice, the right to exercise such Rights shall terminate and the only right thereafter of a holder of such Rights shall be to receive that number of shares of Common Stock equal to the number of such Rights held by such holder multiplied by the Exchange Ratio. The Company shall promptly give public notice of any such exchange; provided, however, that the failure to give, or any defect in, such notice shall not affect the validity of such exchange. The Company promptly shall mail a notice of any such exchange to all of the holders of such Rights at their last addresses as they appear upon the registry books of the Rights Agent. Any notice which is mailed in the manner herein provided shall be deemed given, whether or not the holder receives the notice. Each such notice of exchange will state the method by which the exchange of the Common Stock for Rights will be effected and, in the event of any partial exchange, the number of Rights which will be exchanged. Any partial exchange shall be effected pro rata based on the number of Rights (other than Rights which have become void pursuant to the provisions of Section 7(e) hereof) held by each holder of Rights. |
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(c) | In any exchange pursuant to this Section 24, the Company, at its option, may substitute Preferred Stock (or Equivalent Preferred Stock, as such term is defined in paragraph (b) of Section 11 hereof) for Common Stock exchangeable for Rights, at the initial rate of one three- hundredth of a share of Preferred Stock (or Equivalent Preferred Stock) for each share of Common Stock, as appropriately adjusted to reflect stock splits, stock dividends and other similar transactions after the date hereof. |
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(d) | In the event that there shall not be sufficient shares of Common Stock issued but not outstanding or authorized but unissued to permit any exchange of Rights as contemplated in accordance with this Section 24, the Company shall take all such action as may be necessary to authorize additional shares of Common Stock for issuance upon exchange of the Rights. |
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(e) | The Company shall not be required to issue fractions of shares of Common Stock or to distribute certificates which evidence fractional shares of Common Stock. In lieu of such fractional shares of Common Stock, there shall be paid to the registered holders of the Rights Certificates with regard to which such fractional shares of Common Stock would otherwise be issuable, an amount in cash equal to the same fraction of the current market value of a whole share of Common Stock. For the purposes of this subsection (e), the current market value of a whole share of Common Stock shall be the closing price of a share of Common Stock (as determined pursuant to the second sentence of Section 11(d)(i) hereof) for the Trading Day immediately prior to the date of exchange pursuant to this Section 24. |
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Section 25. Notice of Certain Events. | |
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(a) | In case the Company shall propose, at any time after the Distribution Date, (i) to pay any dividend payable in stock of any class to the holders of Preferred Stock or to make any other distribution to the holders of Preferred Stock (other than a regular quarterly cash dividend out of earnings or retained earnings of the Company), or (ii) to offer to the holders of Preferred Stock rights or warrants to subscribe for or to purchase any additional shares of Preferred Stock or shares of stock of any class or any other securities, rights or options, or (iii) to effect any reclassification of its |
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Preferred Stock (other than a reclassification involving only the subdivision of outstanding shares of Preferred Stock), or (iv) to effect any consolidation or merger into or with any other Person (other than a Subsidiary of the Company in a transaction which complies with Section 11(o) hereof), or to effect any sale or other transfer (or to permit one or more of its Subsidiaries to effect any sale or other transfer), in one transaction or a series of related transactions, of more than 50% of the assets or earning power of the Company and its Subsidiaries (taken as a whole) to any other Person or Persons (other than the Company and/or any of its Subsidiaries in one or more transactions each of which complies with Section 11(o) hereof), or (v) to effect the liquidation, dissolution or winding up of the Company, then, in each such case, the Company shall give to each holder of a Rights Certificate, to the extent feasible and in accordance with Section 26 hereof, a notice of such proposed action, which shall specify the record date for the purposes of such stock dividend, distribution of rights or warrants, or the date on which such reclassification, consolidation, merger, sale, transfer, liquidation, dissolution, or winding up is to take place and the date of participation therein by the holders of the shares of Preferred Stock, if any such date is to be fixed, and such notice shall be so given in the case of any action covered by clause (i) or (ii) above at least twenty (20) days prior to the record date for determining holders of the shares of Preferred Stock for purposes of such action, and in the case of any such other action, at least twenty (20) days prior to the date of the taking of such proposed action or the date of participation therein by the holders of the shares of Preferred Stock whichever shall be the earlier. | |
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(b) | In case any of the events set forth in Section 11(a)(ii) hereof shall occur, then, in any such case, (i) the Company shall as soon as practicable thereafter give to each holder of a Rights Certificate, to the extent feasible and in accordance with Section 26 hereof, a notice of the occurrence of such event, which shall specify the event and the consequences of the event to holders of Rights under Section 11(a)(ii) hereof, and (ii) all references in the preceding paragraph to Preferred Stock shall be deemed thereafter to refer to Common Stock and/or, if appropriate, other securities. |
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Section 26. Notices. Notices or demands authorized by this Agreement to be given or made by the Rights Agent or by |
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the holder of any Rights Certificate to or on the Company shall be sufficiently given or made if sent by first-class mail, postage prepaid, addressed (until another address is filed in writing with the Rights Agent by the Company) as follows: | |
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Deere & Company
Attention: Corporate Secretary John Deere Road Moline, Illinois 61265 |
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Subject to the provisions of Section 21, any notice or demand authorized by this Agreement to be given or made by the Company or by the holder of any Rights Certificate to or on the Rights Agent shall be sufficiently given or made if sent by first-class mail, postage prepaid, addressed (until another address is filed in writing by the Rights Agent with the Company) as follows: | |
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The Bank of New York
Attention: Vice President Administration 101 Barclay Street - 12W New York, New York 10286 |
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Notices or demands authorized by this Agreement to be given or made by the Company or the Rights Agent to the holder of any Rights Certificate (or, if prior to the Distribution Date, to the holder of certificates representing shares of Common Stock) shall be sufficiently given or made if sent by first-class mail, postage prepaid, addressed to such holder at the address of such holder as shown on the registry books of the Company. | |
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Section 27. Supplements and Amendments. Prior to the Distribution Date, and subject to the penultimate sentence of this Section 27, the Company and the Rights Agent shall, if the Company so directs, supplement or amend any provision of this Agreement without the approval of any holders of certificates representing shares of Common Stock. From and after the Distribution Date, the Company and the Rights Agent shall, if the Company so directs, supplement or amend this Agreement without the approval of any holders of Rights Certificates in order (i) to cure any ambiguity, (ii) to correct or supplement any provision contained herein which may be defective or inconsistent with any other provisions herein, (iii) to shorten or lengthen any time period hereunder, or (iv) to change or |
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supplement the provisions hereunder in any manner which the Company may deem necessary or desirable and which shall not adversely affect the interests of the holders of Rights Certificates (other than an Acquiring Person or an Affiliate or Associate of an Acquiring Person); provided, this Agreement may not be supplemented or amended to lengthen any time period hereunder, pursuant to clause (iii) of this sentence, (A) a time period relating to when the Rights may be redeemed at such time as the Rights are not then redeemable, or (B) any other time period unless such lengthening is for the purpose of protecting, enhancing or clarifying the rights of, and/or the benefits to, the holders of Rights. Upon the delivery of a certificate from an appropriate officer of the Company which states that the proposed supplement or amendment is in compliance with the terms of this Section 27, the Rights Agent shall execute such supplement or amendment. Prior to the Distribution Date, the interests of th e holders of Rights shall be deemed coincident with the interests of the holders of Common Stock. Notwithstanding anything herein to the contrary, this Agreement may not be amended at a time when the Rights are not redeemable. |
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Section 28. Successors. All the covenants and provisions of this Agreement by or for the benefit of the Company or the Rights Agent shall bind and inure to the benefit of their respective successors and assigns hereunder. |
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Section 29. Determinations and Actions by the Board of Directors, etc. For all purposes of this Agreement, any calculation of the number of shares of Common Stock outstanding at any particular time, including for purposes of determining the particular percentage of such outstanding shares of Common Stock of which any Person is the Beneficial Owner, shall be made in accordance with the last sentence of Rule 13d- 3(d)(1)(i) of the General Rules and Regulations under the Exchange Act. The Board of Directors of the Company shall have the exclusive power and authority to administer this Agreement and to exercise all rights and powers specifically granted to the Board or to the Company, or as may be necessary or advisable in the administration of this Agreement, including, without limitation, the right and power to (i) interpret the provisions of this Agreement, and (ii) make all determinations deemed necessary or advisable for the administration of this Agreement (including a determination to redeem or not redeem |
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the Rights or to amend the Agreement). All such actions, calculations, interpretations and determinations (including, for purposes of clause (y) below, all omissions with respect to the foregoing) which are done or made by the Board in good faith, shall (x) be final, conclusive and binding on the Company, the Rights Agent, the holders of the Rights and all other parties, and (y) not subject the Board, or any directors on the Board to any liability to the holders of the Rights. |
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Section 30. Benefits of this Agreement. Nothing in this Agreement shall be construed to give to any Person other than the Company, the Rights Agent and the registered holders of the Rights Certificates (and, prior to the Distribution Date, registered holders of the Common Stock) any legal or equitable right, remedy or claim under this Agreement; but this Agreement shall be for the sole and exclusive benefit of the Company, the Rights Agent and the registered holders of the Rights Certificates (and, prior to the Distribution Date, registered holders of the Common Stock). |
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Section 31. Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated; provided, however, that notwithstanding anything in this Agreement to the contrary, if any such term, provision, covenant or restriction is held by such court or authority to be invalid, void or unenforceable and the Board of Directors of the Company determines in its good faith judgment that severing the invalid language from this Agreement would adversely affect the purpose or effect of this Agreement, the right of redemption set forth in Section 23 hereof shall be reinstated and shall not expire until the close of business on the tenth day following the date of such determination by the B oard of Directors. |
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Section 32. Governing Law. This Agreement, each Right and each Rights Certificate issued hereunder shall be deemed to be a contract made under the laws of the State of Delaware and for all purposes shall be governed by and construed in accordance with the laws of such State applicable to contracts made and to be performed entirely within such State, except that the rights |
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and obligations of the Rights Agent shall be governed by the laws of the State of New York. |
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Section 33. Counterparts. This Agreement may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument. |
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Section 34. Descriptive Headings. Descriptive headings of the several sections of this Agreement are inserted for convenience only and shall not control or affect the meaning or construction of any of the provisions hereof. |
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and their respective corporate seals to be hereunto affixed and attested, all as of the day and year first above written. |
Attest: | DEERE & COMPANY | |||
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By: | /s/ Michael A. Harring |
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By: | /s/ Robert W. Lane |
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Name: | Michael A. Harring |
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Name: | Robert W. Lane |
Title: | Assistant Secretary |
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Title: | Senior Vice President |
Attest: | THE BANK OF NEW YORK | |||
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By: | /s/ Robert McMonagle |
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By: | /s/ John Sivertsen |
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Name: | Robert McMonagle |
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Name: | John Sivertsen |
Title: |
Assistant Vice
President |
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Title: | Vice President |
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Exhibit A | ||||
Certificate No. R- | Rights | |||
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NOT EXERCISABLE AFTER DECEMBER 31, 2007 UNLESS EXTENDED PRIOR THERETO BY THE BOARD OF DIRECTORS OR EARLIER IF REDEEMED BY THE COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $.01 PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS DEFINED IN THE RIGHTS AGREEMENT) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS RIGHTS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHTS CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BECOME NULL AND VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF SUCH AGREEMENT.] | ||||
Rights Certificate | ||||
DEERE & COMPANY | ||||
This certifies that ____________________, or registered assigns, is the registered owner of the number of Rights set forth above, each of which entitles the owner thereof, subject to the terms, provisions and conditions of the Rights Agreement, dated as of December 3, 1997 (the "Rights Agreement"), between Deere & Company, a Delaware corporation (the "Company"), and The Bank of New York, a New York corporation (the "Rights Agent"), to purchase from the Company at any time prior to 5:00 P.M. (New York City time) on December 31, 2007 (unless such date is extended prior thereto by the Board of Directors) at the office or offices of the Rights Agent designated for such purpose, or its successors as Rights Agent, one three-hundredth of a fully paid, non-assessable share of Series A Participating Preferred Stock (the "Preferred Stock") of the Company, at a purchase price of $225 per one three-hundredth of a share (the "Purchase Price"), upon | ||||
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1 | The portion of the legend in brackets shall be inserted only if applicable and shall replace the preceding sentence. |
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presentation and surrender of this Rights Certificate with the Form of Election to Purchase and related Certificate duly executed. The number of Rights evidenced by this Rights Certificate (and the number of shares which may be purchased upon exercise thereof) set forth above, and the Purchase Price per share set forth above, are the number and Purchase Price as of December 3, 1997 based on the Preferred Stock as constituted at such date. The Company reserves the right to require prior to the occurrence of a Triggering Event (as such term is defined in the Rights Agreement) that a number of Rights be exercised so that only whole shares of Preferred Stock will be issued. |
Upon the occurrence of a Section 11(a)(ii) Event (as such term is defined in the Rights Agreement), if the Rights evidenced by this Rights Certificate are beneficially owned by (a) an Acquiring Person or an Affiliate or Associate of any such Acquiring Person (as such terms are defined in the Rights Agreement), (b) a transferee of any such Acquiring Person, Associate or Affiliate, or (c) under certain circumstances specified in the Rights Agreement, a transferee of a person who, after such transfer, became an Acquiring Person, or an Affiliate or Associate of an Acquiring Person, such Rights shall become null and void and no holder hereof shall have any right with respect to such Rights from and after the occurrence of such Section 11(a)(ii) Event. |
As provided in the Rights Agreement, the Purchase Price and the number and kind of shares of Preferred Stock or other securities, which may be purchased upon the exercise of the Rights evidenced by this Rights Certificate are subject to modification and adjustment upon the happening of certain events, including Triggering Events. |
This Rights Certificate is subject to all of the terms, provisions and conditions of the Rights Agreement, which terms, provisions and conditions are hereby incorporated herein by reference and made a part hereof and to which Rights Agreement reference is hereby made for a full description of the rights, limitations of rights, obligations, duties and immunities hereunder of the Rights Agent, the Company and the holders of the Rights Certificates, which limitations of rights include the temporary suspension of the exercisability of such Rights under the specific circumstances set forth in the Rights |
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Agreement. Copies of the Rights Agreement are on file at the above-mentioned office of the Rights Agent and are also available upon written request to the Rights Agent. |
This Rights Certificate, with or without other Rights Certificates, upon surrender at the principal office or offices of the Rights Agent designated for such purpose, may be exchanged for another Rights Certificate or Rights Certificates of like tenor and date evidencing Rights entitling the holder to purchase a like aggregate number of one three-hundredths of a share of Preferred Stock as the Rights evidenced by the Rights Certificate or Rights Certificates surrendered shall have entitled such holder to purchase. If this Rights Certificate shall be exercised in part, the holder shall be entitled to receive upon surrender hereof another Rights Certificate or Rights Certificates for the number of whole Rights not exercised. |
Subject to the provisions of the Rights Agreement, the Rights evidenced by this Certificate may be redeemed by the Company at its option at a redemption price of $.01 per Right at any time prior to the earlier of the close of business on (i) the tenth day following the Stock Acquisition Date (as such time period may be extended pursuant to the Rights Agreement), and (ii) the Final Expiration Date. In addition, under certain circumstances following the Stock Acquisition Date, the Rights may be exchanged, in whole or in part, for shares of the Common Stock, or shares of preferred stock of the Company having essentially the same value or economic rights as such shares. Immediately upon the action of the Board of Directors of the Company authorizing any such exchange, and without any further action or any notice, the Rights (other than Rights which are not subject to such exchange) will terminate and the Rights will only enable holders to receive the shares iss uable upon such exchange. |
No fractional shares of Preferred Stock will be issued upon the exercise of any Right or Rights evidenced hereby (other than fractions which are integral multiples of one three- hundredth of a share of Preferred Stock, which may, at the election of the Company, be evidenced by depositary receipts), but in lieu thereof a cash payment will be made, as provided in the Rights Agreement. The Company, at its election, may require that a number of Rights be exercised so that only whole shares of Preferred Stock would be issued. |
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[Form of Reverse Side of Rights Certificate] | ||
FORM OF ASSIGNMENT | ||
(To be executed by the registered holder if such holder desires to transfer the Rights Certificate.) | ||
FOR VALUE RECEIVED _________________________________ hereby sells, assigns and transfers unto ____________________________ | ||
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(Please print name and address of transferee) | ||
this Rights Certificate, together with all right, title and interest therein, and does hereby irrevocably constitute and appoint ________________ Attorney, to transfer the within Rights Certificate on the books of the within-named Company, with full power of substitution. | ||
Dated: ______________, ____ | ||
__________________________________
Signature |
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Signature Guaranteed: | ||
Certificate | ||
The undersigned hereby certifies by checking the appropriate boxes that: | ||
(1) | this Rights Certificate [ ] is [ ] is not being sold, assigned and transferred by or on behalf of a Person who is or was an Acquiring Person or an Affiliate or Associate of any such Acquiring Person (as such terms are defined pursuant to the Rights Agreement); | |
(2) | after due inquiry and to the best knowledge of the undersigned, it [ ] did [ ] did not acquire the Rights evidenced by this Rights Certificate from any Person who is, was or subsequently became an Acquiring Person or an Affiliate of Associate of an Acquiring Person. | |
Dated: ______________, ____ | ||
__________________________________ | ||
Signature | ||
Signature Guaranteed: |
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NOTICE | |
The signature to the foregoing Assignment and Certificate must correspond to the name as written upon the face of this Rights Certificate in every particular, without alteration or enlargement or any change whatsoever. | |
FORM OF ELECTION TO PURCHASE | |
(To be executed if holder desires to exercise Rights
represented by the Rights Certificate.) |
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To: DEERE & COMPANY: | |
The undersigned hereby irrevocably elects to exercise __________ Rights represented by this Rights Certificate to purchase the shares of Preferred Stock issuable upon the exercise of the Rights (or such other securities of the Company or of any other person which may be issuable upon the exercise of the Rights) and requests that certificates for such shares be issued in the name of and delivered to: | |
Please insert social security
or other identifying number |
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(Please print name and address) | |
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If such number of Rights shall not be all the Rights evidenced by this Rights Certificate, a new Rights Certificate for the balance of such Rights shall be registered in the name of and delivered to: | |
Please insert social security
of other identifying number |
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(Please print name and address) | |
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Dated: ______________, ____ | ___________________________ |
Signature | |
Signature Guaranteed: |
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Exhibit B |
SUMMARY OF RIGHTS TO PURCHASE |
PREFERRED STOCK |
On December 3, 1997, the Board of Directors of Deere & Company (the "Company") declared a dividend distribution of one Right for each outstanding share of Company Common Stock to stockholders of record at the close of business on December 31, 1997 (the "Record Date"). Each Right entitles the registered holder to purchase from the Company a unit consisting of one three-hundredth of a share (a "Unit") of Series A Participating Preferred Stock, $1 par value (the "Preferred Stock") at a Purchase Price of $225 per Unit, subject to adjustment. The description and terms of the Rights are set forth in a Rights Agreement (the "Rights Agreement") between the Company and The Bank of New York, as Rights Agent. |
Initially, the Rights will be attached to all Common Stock certificates representing shares then outstanding, and no separate Rights Certificates will be distributed. Subject to certain exceptions specified in the Rights Agreement, the Rights will separate from the Common Stock and a Distribution Date will occur upon the earlier of (i) 10 days following a public announcement that a person or group of affiliated or associated persons (an "Acquiring Person") has acquired beneficial ownership of 15% or more of the outstanding shares of Common Stock (the "Stock Acquisition Date"), other than as a result of repurchases of stock by the Company or certain inadvertent actions by institutional or certain other stockholders, or (ii) 10 business days (or such later date as the Board shall determine) following the commencement of a tender offer or exchange offer that would result in a person or group becoming an Acquiring Person. Until the Distribution Date, (i) the Ri ghts will be evidenced by the Common Stock certificates and will be transferred with and only with such Common Stock certificates, (ii) new Common Stock certificates issued after the Record Date will contain a notation incorporating the Rights Agreement by reference and (iii) the surrender for transfer of any certificates for Common Stock outstanding will also constitute the transfer of the Rights associated with the Common Stock represented by such certificate. Pursuant to the Rights Agreement, the Company reserves the right to require prior to the occurrence of a Triggering Event (as defined below) that, upon any exercise of |
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Rights, a number of Rights be exercised so that only whole shares of Preferred Stock will be issued. |
The Rights are not exercisable until the Distribution Date and will expire at 5:00 P.M. (New York City time) on December 31, 2007, unless such date is extended or the Rights are earlier redeemed or exchanged by the Company as described below. |
As soon as practicable after the Distribution Date, Rights Certificates will be mailed to holders of record of the Common Stock as of the close of business on the Distribution Date and, thereafter, the separate Rights Certificates alone will represent the Rights. Except as otherwise determined by the Board of Directors, only shares of Common Stock issued prior to the Distribution Date will be issued with Rights. |
In the event that a Person becomes an Acquiring Person, except pursuant to an offer for all outstanding shares of Common Stock which the independent directors determine to be fair and not inadequate to and to otherwise be in the best interests of the Company and its stockholders, after receiving advice from one or more investment banking firms, each holder of a Right will thereafter have the right to receive, upon exercise, Common Stock (or, in certain circumstances, cash, property or other securities of the Company) having a value equal to two times the exercise price of the Right. Notwithstanding any of the foregoing, following the occurrence of any of the events set forth in this paragraph, all Rights that are, or (under certain circumstances specified in the Rights Agreement) were, beneficially owned by any Acquiring Person will be null and void. However, Rights are not exercisable following the occurrence of the events set forth above until such time a s the Rights are no longer redeemable by the Company as set forth below. |
For example, at an exercise price of $225 per Right, each Right not owned by an Acquiring Person (or by certain related parties) following an event set forth in the preceding paragraph would entitle its holder to purchase $450 worth of Common Stock (or other consideration, as noted above) for $225. Assuming that the Common Stock had a per share value of $50 at such time, the holder of each valid Right would be entitled to purchase 9 shares of Common Stock for $225. |
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In the event that, at any time following the Stock Acquisition Date, (i) the Company is acquired in a merger or other business combination transaction in which the Company is not the surviving corporation (other than with an entity which acquired the shares pursuant to an offer described in the second preceding paragraph), (ii) the Company engages in a merger or other business combination transaction in which the Company is the surviving corporation and the Common Stock of the Company is changed or exchanged, or (iii) 50% or more of the Company's assets or earning power is sold or transferred, each holder of a Right (except Rights which have previously been voided as set forth above) shall thereafter have the right to receive, upon exercise, Common Stock of the acquiring company having a value equal to two times the exercise price of the Right. The events set forth in this paragraph and in the second preceding paragraph are referred to as the "Triggering Ev ents." |
At any time after a person becomes an Acquiring Person and prior to the acquisition by such person or group of fifty percent (50%) or more of the outstanding Common Stock, the Board may exchange the Rights (other than Rights owned by such person or group which have become void), in whole or in part, at an exchange ratio of one share of Common Stock, or one three- hundredth of a share of Preferred Stock (or of a share of a class or series of the Company's preferred stock having equivalent rights, preferences and privileges), per Right (subject to adjustment). |
At any time until ten days following the Stock Acquisition Date, the Company may redeem the Rights in whole, but not in part, at a price of $.01 per Right (payable in cash, Common Stock or other consideration deemed appropriate by the Board of Directors). Immediately upon the action of the Board of Directors ordering redemption of the Rights, the Rights will terminate and the only right of the holders of Rights will be to receive the $.01 redemption price. |
Until a Right is exercised, the holder thereof, as such, will have no rights as a stockholder of the Company, including, without limitation, the right to vote or to receive dividends. While the distribution of the Rights will not be taxable to stockholders or to the Company, stockholders may, depending upon the circumstances, recognize taxable income in the event |
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that the Rights become exercisable for Common Stock (or other consideration) of the Company or for Common Stock of the acquiring company or in the event of the redemption of the Rights as set forth above. |
Any of the provisions of the Rights Agreement may be amended by the Board of Directors of the Company prior to the Distribution Date. After the Distribution Date, the provisions of the Rights Agreement may be amended by the Board in order to cure any ambiguity, to make changes which do not adversely affect the interests of holders of Rights, or to shorten or lengthen any time period under the Rights Agreement. The foregoing notwithstanding, no amendment may be made at such time as the Rights are not redeemable. |
A copy of the Rights Agreement is being filed with the Securities and Exchange Commission as an Exhibit to a Registration Statement on Form 8-A. A copy of the Rights Agreement is available free of charge from the Rights Agent. This summary description of the Rights does not purport to be complete and is qualified in its entirety by reference to the Rights Agreement, which is incorporated herein by reference. |
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EXHIBIT 4.5 |
TERMS AND CONDITIONS OF THE NOTES |
The following is the text of the terms and conditions which, as supplemented, amended and/or replaced by the relevant Pricing Supplement, will be endorsed on each Note in definitive form issued under the Programme. The terms and conditions applicable to any Note in global form will differ from those terms and conditions which would apply to the Note were it in definitive form to the extent described under "Summary of Provisions Relating to the Notes while in Global Form" below. |
1. Introduction |
(a) Programme: |
Deere & Company (" Deere ") (as issuer), John Deere Capital Corporation (" Deere Capital ") (as issuer), John Deere Bank S.A. (" Deere Luxembourg "), John Deere Credit Limited (ABN 55 078 714 646) (" Deere Credit Australia "), John Deere Limited (ABN 21 008 671 725) (" Deere Australia "), John Deere B.V. (" Deere Netherlands "), John Deere Credit Inc. (" Deere Credit Canada ") and John Deere Limited (" Deere Canada ") (each an " Issuer ", and, collectively the " Issuers ") have established a Euro Medium Term Note Programme (the " Programme ") for the issuance of up to U.S.$3,000,000,000 in aggregate principal amount of notes outstanding at any time (the " Notes "). Notes issued by Deere Netherlands, Deere Canada, Deere Credit Canada and Deere Australia are guaranteed by Deere (a " Guarantor ") and Notes issued by Deere Luxembourg and Deere Credit Australia are guaranteed by Deere Capital (a " Guarantor " and together with Deere, the " Guarantors "). |
In these Conditions, references to " Issuer " are to Deere, Deere Capital, Deere Luxembourg, Deere Australia, Deere Credit Australia, Deere Netherlands, Deere Canada or Deere Credit Canada, as the case may be, as the Issuer of the Notes under the Programme and references to the " relevant Issuer " shall be construed accordingly. In these Conditions, references to " Guarantor " are to Deere or Deere Capital as Guarantor, in the case of Deere, of Notes to be issued by Deere Netherlands, Deere Canada, Deere Credit Canada and Deere Australia and, in the case of Deere Capital, of Notes to be issued by Deere Luxembourg and Deere Credit Australia and references to the " relevant Guarantor " shall be construed accordingly. |
(b) Pricing Supplement: |
Notes issued under the Programme are issued in series (each a " Series ") and each Series may comprise one or more tranches (each a " Tranche ") of Notes. Each Tranche is the subject of a pricing supplement (the " Pricing Supplement ") which supplements these terms and conditions (the " Conditions "). The terms and conditions applicable to any particular Tranche of Notes are these Conditions as supplemented, amended and/or replaced by the relevant Pricing Supplement. The applicable Pricing Supplement or Pricing Supplements will specify whether the Issuer is Deere, Deere Capital, Deere Luxembourg, Deere Australia, Deere Credit Australia, Deere Netherlands, Deere Canada or Deere Credit Canada. In the event of any inconsistency between these Conditions and the relevant Pricing Supplement, the relevant Pricing Supplement shall prevail. |
(c) Agency Agreement: |
The Notes are the subject of an amended and restated issue and paying agency agreement dated 31 May 2002 (as amended or supplemented from time to time, the " Agency Agreement ") between the Issuers, the Guarantors, JPMorgan Chase Bank as fiscal agent (the " Fiscal Agent ", which expression includes any successor fiscal agent appointed from time to time in connection with the Notes) and the paying agents named therein (together with the Fiscal Agent, the " Paying Agents ", which expression includes any successor or additional paying agents appointed from time to time in connection with the Notes). |
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(d) Deeds of Guarantee: | |
Notes issued by Deere Netherlands, Deere Canada, Deere Credit Canada and Deere Australia are the subject of a deed of guarantee dated 31 May 2002 (as amended or supplemented from time to time, the " Deere Deed of Guarantee ") entered into by Deere. Notes issued by Deere Luxembourg and Deere Credit Australia are the subject of a deed of guarantee dated 31 May 2002 (as amended or supplemented from time to time, the " JDCC Deed of Guarantee " together with the Deere Deed of Guarantee, the " Deeds of Guarantee " and each a " Deed of Guarantee ") entered into by Deere Capital. | |
(e) The Notes: | |
All subsequent references in these Conditions to " Notes " are to the Notes which are the subject of the relevant Pricing Supplement. Copies of the relevant Pricing Supplement are available for inspection by Noteholders during normal business hours at the Specified Office of the Fiscal Agent, the initial Specified Office of which is set out below. | |
(f) Summaries: | |
Certain provisions of these Conditions are summaries of the Agency Agreement and the Deeds of Guarantee and are subject to their detailed provisions. The holders of the Notes (the " Noteholders ") and the holders of the related interest coupons, if any, (the " Couponholders " and the " Coupons ", respectively) are bound by, and are deemed to have notice of, all the provisions of the Agency Agreement and the Deeds of Guarantee applicable to them. Copies of the Agency Agreement and the Deeds of Guarantee are available for inspection by Noteholders during normal business hours at the Specified Offices of each of the Paying Agents, the initial Specified Offices of which are set out below. | |
2. Interpretation | |
(a) Definitions: | |
In these Conditions the following expressions have the following meanings: | |
" Accrual Yield " has the meaning given in the relevant Pricing Supplement; | |
" Additional Business Centre(s) " means the city or cities specified as such in the relevant Pricing Supplement; | |
" Additional Financial Centre(s) " means the city or cities specified as such in the relevant Pricing Supplement; | |
" Attributable Debt " shall mean, as of any particular time, the present value, discounted at a rate per annum equal to the weighted average interest rate of all Notes denominated in euro outstanding at the time under the Programme, compounded semi-annually, of the obligation of a lessee for rental payments during the remaining term of any lease (including any period for which such lease has been extended or may, at the option of the lessor, be extended); the net amount of rent required to be paid for any such period shall be the total amount of the rent payable by the lessee with respect to such period, but may exclude amounts required to be paid on account of maintenance and repairs, insurance, taxes, assessments, water rates and similar charges; and, in the case of any lease which is terminable by the lessee upon the payment of a penalty, such net amount shall also include the amount of such penalty, but no rent shall be considered as required to be paid under such lease subsequent to the first da te upon which it may be so terminated; | |
" Business Day " means: | |
(i) | in relation to any sum payable in euro, a TARGET Settlement Day and a day on which commercial banks and foreign exchange markets settle payments generally in each (if any) Additional Business Centre; and |
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(ii) | in relation to any sum payable in a currency other than euro, a day on which commercial banks and foreign exchange markets settle payments generally in London, in the Principal Financial Centre of the relevant currency and in each (if any) Additional Business Centre; | |
" Business Day Convention ", in relation to any particular date, has the meaning given in the relevant Pricing Supplement and, if so specified in the relevant Pricing Supplement, may have different meanings in relation to different dates and, in this context, the following expressions shall have the following meanings: | ||
(i) | " Following Business Day Convention " means that the relevant date shall be postponed to the first following day that is a Business Day; | |
(ii) | " Modified Following Business Day Convention " or " Modified Business Day Convention " means that the relevant date shall be postponed to the first following day that is a Business Day unless that day falls in the next calendar month in which case that date will be the first preceding day that is a Business Day; | |
(iii) | " Preceding Business Day Convention " means that the relevant date shall be brought forward to the first preceding day that is a Business Day; | |
(iv) | " FRN Convention ", " Floating Rate Convention " or " Eurodollar Convention " means that each relevant date shall be the date which numerically corresponds to the preceding such date in the calendar month which is the number of months specified in the relevant Pricing Supplement as the Specified Period after the calendar month in which the preceding such date occurred provided, however, that : | |
(A) | if there is no such numerically corresponding day in the calendar month in which any such date should occur, then such date will be the last day which is a Business Day in that calendar month; | |
(B) | if any such date would otherwise fall on a day which is not a Business Day, then such date will be the first following day which is a Business Day unless that day falls in the next calendar month, in which case it will be the first preceding day which is a Business Day; and | |
(C) | if the preceding such date occurred on the last day in a calendar month which was a Business Day, then all subsequent such dates will be the last day which is a Business Day in the calendar month which is the specified number of months after the calendar month in which the preceding such date occurred; and | |
(v) | " No Adjustment " means that the relevant date shall not be adjusted in accordance with any Business Day Convention; | |
" Calculation Agent " means the Fiscal Agent or such other Person specified in the relevant Pricing Supplement as the party responsible for calculating the Rate(s) of Interest and Interest Amount(s) and/or such other amount(s) as may be specified in the relevant Pricing Supplement; | ||
" Consolidated Net Worth " shall mean the aggregate of capital and surplus of Deere and its consolidated Subsidiaries, less minority interests in Subsidiaries, determined in accordance with United States Generally Accepted Accounting Principles (" GAAP "). | ||
" Coupon Sheet " means, in respect of a Note, a coupon sheet relating to the Note; | ||
" CSSF " means the Commission de Surveillance du Secteur Financier (the Luxembourg Financial Sector Supervisory Commission); | ||
" Day Count Fraction " means (subject as provided in Condition 6), in respect of the calculation of an amount for any period of time (whether or not constituting an Interest Period) (the " Calculation Period "), such day count fraction as may be specified in these Conditions or the relevant Pricing Supplement and: |
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(i) | if " Actual/Actual (ISMA) " is so specified, means: | ||
(a) | where the Calculation Period is equal to or shorter than the Regular Period during which it falls, the actual number of days in the Calculation Period divided by the product of (1) the actual number of days in such Regular Period and (2) the number of Regular Periods in any year; and | ||
(b) | where the Calculation Period is longer than one Regular Period, the sum of: | ||
(A) | the actual number of days in such Calculation Period falling in the Regular Period in which it begins divided by the product of (1) the actual number of days in such Regular Period and (2) the number of Regular Periods in any year; and | ||
(B) | the actual number of days in such Calculation Period falling in the next Regular Period divided by the product of (a) the actual number of days in such Regular Period and (2) the number of Regular Periods in any year; | ||
(ii) | if " Actual/365 " or " Actual/Actual (ISDA)" is so specified, means the actual number of days in the Calculation Period divided by 365 (or, if any portion of the Calculation Period falls in a leap year, the sum of (A) the actual number of days in that portion of the Calculation Period falling in a leap year divided by 366 and (B) the actual number of days in that portion of the Calculation Period falling in a non-leap year divided by 365); | ||
(iii) | if " Actual/365 (Fixed) " is so specified, means the actual number of days in the Calculation Period divided by 365; | ||
(iv) | if " Actual/360 " is so specified, means the actual number of days in the Calculation Period divided by 360; | ||
(v) | if " 30/360 " is so specified, means the number of days in the Calculation Period divided by 360 (the number of days to be calculated on the basis of a year of 360 days with 12 30-day months (unless (i) the last day of the Calculation Period is the 31st day of a month but the first day of the Calculation Period is a day other than the 30th or 31st day of a month, in which case the month that includes that last day shall not be considered to be shortened to a 30-day month, or (ii) the last day of the Calculation Period is the last day of the month of February, in which case the month of February shall not be considered to be lengthened to a 30-day month)); and | ||
(vi) | if " 30E/360 " or " Eurobond Basis " is so specified means, the number of days in the Calculation Period divided by 360 (the number of days to be calculated on the basis of a year of 360 days with 12 30-day months, without regard to the date of the first day or last day of the Calculation Period unless, in the case of the final Calculation Period, the date of final maturity is the last day of the month of February, in which case the month of February shall not be considered to be lengthened to a 30-day month); | ||
" Early Redemption Amount (Tax) " means, in respect of any Note, its principal amount or such other amount as may be specified in, or determined in accordance with, the relevant Pricing Supplement; | |||
" Early Termination Amount " means, in respect of any Note, its principal amount or such other amount as may be specified in, or determined in accordance with, these Conditions or the relevant Pricing Supplement; | |||
" Extraordinary Resolution " has the meaning given in the Agency Agreement; | |||
" Excluded Sale and Lease-back Transaction " means (A) a Sale and Lease-back Transaction which, if the Attributable Debt in respect of such Sale and Lease-back Transaction had been a Security Interest, would have been permitted by paragraph (i) of the definition of Permitted Security Interest and (B) other Sale and Lease-back Transactions where the net proceeds of such sale are at least equal to the fair value (as determined by the Board of Directors of Deere) of the property and (i) Deere, within 120 days of the effective date of any such arrangement, applies an amount equal to the fair value (as so determined) of such property to any Notes redeemed prior to their Maturity |
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Date or the purchase and retirement of Notes or to the payment or other retirement of funded debt for money borrowed, incurred or assumed by Deere which ranks senior to or pari passu with the Notes or of funded debt for money borrowed, incurred or assumed by any Material Subsidiary (other than, in either case, funded debt owned by Deere or any Material Subsidiary), or (ii) Deere shall, at or prior to the time of entering into the Sale and Lease-back Transaction, enter into a bona fide commitment or commitments to expend for the acquisition or improvement of any Important Property an amount at least equal to the fair value (as so determined) of such property. For this purpose, funded debt means any Debt (as defined in Condition 5(a)) which by its terms matures at or is extendable or renewable at the sole option of the obligor without requiring the consent of the obligee to a date more than twelve months after the date of the creation of such Debt. | |
" Final Redemption Amount " means, in respect of any Note, its principal amount or such other amount as may be specified in, or determined in accordance with, the relevant Pricing Supplement; | |
" Fixed Coupon Amount " has the meaning given in the relevant Pricing Supplement; | |
" Guarantee " means, in relation to any Indebtedness of any Person, any obligation of another Person to pay such Indebtedness; | |
" Guarantee of the Notes " means either the guarantee of the Notes given by Deere in the Deere Deed of Guarantee or the guarantee of the Notes given by Deere Capital in the JDCC Deed of Guarantee; | |
" Important Property " means (a) any manufacturing plant, including land, all buildings and other improvements thereon, and all manufacturing machinery and equipment located therein, used by the Issuer or Deere or a Material Subsidiary primarily for the manufacture of products to be sold by the Issuer or Deere or such Material Subsidiary, (b) the executive office and administrative building of Deere in Moline, Illinois, and (c) research and development facilities, including land and buildings and other improvements thereon and research and development machinery and equipment located therein, in each case, used by the Issuer or Deere or a Material Subsidiary; except in any case property of which the aggregate fair value as determined by the Board of Directors of Deere does not at the time exceed 1 per cent. of Consolidated Net Worth of Deere, as shown on the audited onsolidated balance sheet contained in the latest annual report to stockholders of Deere; | |
" Indebtedness " means any indebtedness of any Person for money borrowed or raised including (without limitation) any indebtedness for or in respect of: | |
(i) | amounts raised by acceptance under any acceptance credit facility; |
(ii) | amounts raised under any note purchase facility; |
(iii) | the amount of any liability in respect of leases or hire purchase contracts which would, in accordance with applicable law and generally accepted accounting principles, be treated as finance or capital leases; |
(iv) | the amount of any liability in respect of any purchase price for assets or services the payment of which is deferred for a period in excess of 60 days; and |
(v) | amounts raised under any other transaction (including, without limitation, any forward sale or purchase agreement) having the commercial effect of a borrowing; |
" Interest Amount " means, in relation to a Note and an Interest Period, the amount of interest payable in respect of that Note for that Interest Period; | |
" Interest Commencement Date " means the Issue Date of the Notes or such other date as may be specified as the Interest Commencement Date in the relevant Pricing Supplement; | |
" Interest Determination Date " has the meaning given in the relevant Pricing Supplement; |
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" Interest Payment Date " means the date or dates specified as such in, or determined in accordance with the provisions of, the relevant Pricing Supplement and, if a Business Day Convention is specified in the relevant Pricing Supplement: | |
(i) | as the same may be adjusted in accordance with the relevant Business Day Convention; or |
(ii) | if the Business Day Convention is the FRN Convention, Floating Rate Convention or Eurodollar Convention and an interval of a number of calendar months is specified in the relevant Pricing Supplement as being the Specified Period, each of such dates as may occur in accordance with the FRN Convention, Floating Rate Convention or Eurodollar Convention at such Specified Period of calendar months following the Interest Commencement Date (in the case of the first Interest Payment Date) or the previous Interest Payment Date (in any other case); |
" Interest Period " means each period beginning on (and including) the Interest Commencement Date or any Interest Payment Date and ending on (but excluding) the next Interest Payment Date; | |
" ISDA Definitions " means the 2000 ISDA Definitions (as further amended and updated as at the date of issue of the first Tranche of the Notes of the relevant Series (as specified in the relevant Pricing Supplement) as published by the International Swaps and Derivatives Association, Inc); | |
" Issue Date " has the meaning given in the relevant Pricing Supplement; | |
" Luxembourg " means the Grand Duchy of Luxembourg; | |
" Margin " has the meaning given in the relevant Pricing Supplement; | |
" Material Subsidiary " shall mean any Subsidiary of Deere which is engaged in, or whose principal assets consist of property used by Deere or any Material Subsidiary in, the manufacture of products within the United States of America or Canada, or in the sale of products principally to customers located in the United States of America or Canada, except any corporation which is a retail dealer in which Deere has, directly or indirectly, an investment under an arrangement providing for the liquidation of such investment; | |
" Maturity Date " has the meaning given in the relevant Pricing Supplement; | |
" Maximum Redemption Amount " has the meaning given in the relevant Pricing Supplement; | |
" Minimum Redemption Amount " has the meaning given in the relevant Pricing Supplement; | |
" Optional Redemption Amount (Call) " means, in respect of any Note, its principal amount or such other amount as may be specified in, or determined in accordance with, the relevant Pricing Supplement; | |
" Optional Redemption Amount (Put) " means, in respect of any Note, its principal amount or such other amount as may be specified in, or determined in accordance with, the relevant Pricing Supplement; | |
" Optional Redemption Date (Call) " has the meaning given in the relevant Pricing Supplement; | |
" Optional Redemption Date (Put) " has the meaning given in the relevant Pricing Supplement; | |
" Participating Member State " means a Member State of the European Communities which adopts the euro as its lawful currency in accordance with the Treaty; | |
" Payment Business Day " means: | |
if the currency of payment is euro, any day which is: | |
(A) | a day on which banks in the relevant place of presentation outside the United States and its possessions are open for presentation and payment of bearer debt securities and for dealings in foreign currencies; and |
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(B) | in the case of payment by transfer to an account, a TARGET Settlement Day and a day on which dealings in foreign currencies may be carried on in each (if any) Additional Financial Centre; or | |
if the currency of payment is not euro, any day which is: | ||
(A) | a day on which banks in the relevant place of presentation outside the United States and its possessions are open for presentation and payment of bearer debt securities and for dealings in foreign currencies; and | |
(B) | in the case of payment by transfer to an account, a day on which dealings in foreign currencies may be carried on in the Principal Financial Centre of the currency of payment and in each (if any) Additional Financial Centre; | |
" Permitted Lien " means: | ||
(i) | any Security Interest created on or over any fixed assets or other physical properties hereafter acquired to secure all or part of the purchase price thereof or the acquiring hereafter of such assets or properties subject to any existing lien or charge securing indebtedness (whether or not assumed); | |
(ii) | easements, liens, franchises or other minor encumbrances on or over any real property which do not materially detract from the value of such property or its use in the business of the Issuer, Deere Capital (as Guarantor) or a Subsidiary of Deere Capital; | |
(iii) | any deposit or pledge of assets (i) with any surety company or clerk of any court, or in escrow, as collateral in connection with, or in lieu of, any bond on appeal from any judgment or decree against the Issuer, Deere Capital (as Guarantor) or a Subsidiary, or in connection with other proceedings or actions at law or in equity by or against the Issuer, Deere Capital (as Guarantor) or a Subsidiary, or (ii) as security for the performance of any contract or undertaking not directly or indirectly related to the borrowing of money or the security of indebtedness, if made in the ordinary course of business, or (iii) with any governmental agency, which deposit or pledge is required or permitted to qualify the Issuer, Deere Capital (as Guarantor) or a Subsidiary to conduct business, to maintain self-insurance, or to obtain the benefits of any law pertaining to workmen's compensation, unemployment insurance, old age pensions, social security, or similar matters, or (iv) made in the ordinary course of business to obtain the release of mechanics', workmen's, repairmen's, warehousemen's or similar liens, or the release of property in the possession of a common carrier; | |
(iv) | any Security Interest by a Subsidiary as security for indebtedness owed to the Issuer or Deere Capital (as Guarantor); | |
(v) | liens for taxes and governmental charges not yet due or contested by appropriate proceeding in good faith; | |
(vi) | any Security Interest existing on property acquired by the Issuer or Deere Capital (as Guarantor) or a Subsidiary of Deere Capital through the exercise of rights arising out of defaults on receivables acquired in the ordinary course of business; | |
(vii) | judgment liens, so long as the finality of such judgment is being contested in good faith and execution thereon is stayed; | |
(viii) | any pledge or lien (other than directly or indirectly to secure borrowed money) if, after giving effect thereto, the aggregate principal sums secured by pledges or liens otherwise within the above restrictions do not exceed U.S.$500,000; or | |
(ix) | any transaction characterised as a sale of receivables (retail or wholesale) but reflected as secured indebtedness on a balance sheet in conformity with generally accepted accounting principles then in effect. |
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" Permitted Security Interest " means: | |
(i) | any Security Interest created on or over any property acquired, constructed or improved by the Issuer, Deere or any Material Subsidiary which is created or assumed contemporaneously with, or within 120 days after, such acquisition, construction or improvement to secure or provide for the payment of all or any part of the purchase price of such property or the cost of such construction or improvement incurred or (in addition to Security Interests contemplated by clauses (ii), (iii) and (iv) below) Security Interests on any property existing at the time of acquisition thereof provided that such Security Interest shall not apply to any Important Property theretofore owned by the Issuer, Deere or any Material Subsidiary other than, in the case of any such construction or improvement, any theretofore unimproved real property on which the property so constructed, or the improvement, is located; |
(ii) | any Security Interest created on or over any property, shares of stock, or indebtedness existing at the time of acquisition thereof from a corporation which is consolidated or amalgamated with or merged into, or substantially all of the assets of which are acquired by, the Issuer, Deere or a Material Subsidiary; |
(iii) | any Security Interest created on or over any property of a corporation which Security Interest was existing at the time such corporation becomes a Material Subsidiary; |
(iv) | any Security Interest created on or over any property to secure Debt (as defined in Condition 5(a)) of a Material Subsidiary to the Issuer, Deere or to another Material Subsidiary; |
(v) | any Security Interest created on or over any property in favour of the United States of America or any State thereof, or any department, agency or instrumentality or political subdivision of the United States of America or any State thereof, to secure partial, progress, advance or other payments pursuant to any contract or statute or to secure any indebtedness incurred for the purpose of financing all or any part of the purchase price or the cost of constructing or improving the property subject to such Security Interest and Security Interests given to secure indebtedness incurred in connection with the financing of construction of pollution control facilities, the interest on which indebtedness is exempt from income taxes under the Internal Revenue Code; |
(vi) | any deposit or pledge of assets (1) with any surety company or clerk of any court, or in escrow, as collateral in connection with, or in lieu of, any bond on appeal from any judgment or decree against the Issuer, Deere or a Subsidiary, or in connection with other proceedings or actions at law or in equity by or against the Issuer, Deere or a Material Subsidiary, or (2) as security for the performance of any contract or undertaking not directly related to the borrowing of money or the securing of indebtedness, if made in the ordinary course of business, or (3) with any governmental agency, which deposit or pledge is required or permitted to qualify the Issuer, Deere or a Material Subsidiary to conduct business, to maintain self-insurance, or to obtain the benefits of any law pertaining to worker's compensation, unemployment insurance, old age pensions, social security, or similar matters, or (4) made in the ordinary course of business to obtain the release of mechanics', workmen's, repairmen's, warehouseme n's or similar liens, or the release of property in the possession of a common carrier; |
(vii) | any Security Interest created on or over any property acquired by the Issuer, Deere or a Material Subsidiary through the exercise of rights arising out of defaults on receivables acquired in the ordinary course of business; |
(viii) | judgment liens, so long as the finality of such judgment is being contested in good faith and execution thereon is stayed; |
(ix) | any Security Interest created on and over any property for the sole purpose of extending, renewing or replacing in whole or part, Debt secured by any Security Interest referred to in paragraphs (i) to (viii) above, inclusive or in this paragraph, provided, however, that the principal amount of Debt secured in such extension, renewal or replacement does not |
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exceed the principal amount of Debt secured at the time of such extension, renewal or replacement and that such extension, renewal or replacement shall be limited to all or a part of the property subject to such Security Interest so extended, renewed or replaced (plus improvements on such property); | |
(x) | liens for taxes or assessments or governmental charges or levies not yet due or delinquent, or which can thereafter be paid without penalty, or which are being contested in good faith by appropriate proceedings; landlord's liens on property held under lease; and any other liens of a nature similar to those hereinabove described in this paragraph (x) which do not, in the opinion of the Issuer and Deere, materially impair the use of such property in the operation of the business of the Issuer, Deere or a Material Subsidiary or the value of such property for the purposes of such business; |
(xi) | any transaction characterised as a sale of receivables (retail or otherwise) but reflected as secured indebtedness on a balance sheet in conformity with generally accepted accounting principles then in effect; |
(xii) | any Security Interest created on or over any Margin Stock (as defined in Regulation U of the Board of Governors of the Federal Reserve System of the United States of America) owned by the Issuer, Deere and its Material Subsidiaries to the extent such Margin Stock so secured exceeds 25 per cent. of the fair market value of the sum of the Important Property of the Issuer, Deere and the Material Subsidiaries plus the shares of stock (including Margin Stock) and indebtedness issued or incurred by the Material Subsidiaries; or |
(xiii) | any Security Interest created on or over any Important Property of, or any shares of stock or indebtedness issued or incurred by, any Material Subsidiary organised under the laws of Canada; |
" Person " means any individual, company, corporation, firm, partnership, joint venture, association, organisation, state or agency of a state or other entity, whether or not having separate legal personality; | |
" Principal Financial Centre " means, in relation to any currency, the principal financial centre for that currency provided, however, that : | |
(i) | in relation to euro, it means the principal financial centre of such Member State of the European Communities as is selected (in the case of a payment) by the payee or (in the case of a calculation) by the Calculation Agent; and |
(ii) | in relation to Australian dollars, it means Sydney and, in relation to New Zealand dollars, it means either Wellington or Auckland; in each case as is selected (in the case of a payment) by the payee or (in the case of a calculation) by the Calculation Agent; |
" Put Option Notice " means a notice which must be delivered to a Paying Agent by any Noteholder wanting to exercise a right to redeem a Note at the option of the Noteholder; | |
" Put Option Receipt " means a receipt issued by a Paying Agent to a depositing Noteholder upon deposit of a Note with such Paying Agent by any Noteholder wanting to exercise a right to redeem a Note at the option of the Noteholder; | |
" Rate of Interest " means the rate or rates (expressed as a percentage per annum) of interest payable in respect of the Notes specified in relevant Pricing Supplement or calculated or determined in accordance with the provisions of these Conditions and/or the relevant Pricing Supplement; | |
" Redemption Amount " means, as appropriate, the Final Redemption Amount, the Early Redemption Amount (Tax), the Optional Redemption Amount (Call), the Optional Redemption Amount (Put), the Early Termination Amount or such other amount in the nature of a redemption amount as may be specified in, or determined in accordance with the provisions of, the relevant Pricing Supplement; |
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" Reference Banks " has the meaning given in the relevant Pricing Supplement or, if none, four (or if the Principal Financial Centre is Helsinki, five) major banks selected by the Calculation Agent in the market that is most closely connected with the Reference Rate; | |
" Reference Price " has the meaning given in the relevant Pricing Supplement; | |
" Reference Rate " has the meaning given in the relevant Pricing Supplement; | |
" Regular Period " means: | |
(i) | in the case of Notes where interest is scheduled to be paid only by means of regular payments, each period from and including the Interest Commencement Date to but excluding the first Interest Payment Date and each successive period from and including one Interest Payment Date to but excluding the next Interest Payment Date; |
(ii) | in the case of Notes where, apart from the first Interest Period, interest is scheduled to be paid only by means of regular payments, each period from and including a Regular Date falling in any year to but excluding the next Regular Date, where " Regular Date " means the day and month (but not the year) on which any Interest Payment Date falls; and |
(iii) | in the case of Notes where, apart from an Interest Period other than the first Interest Period, interest is scheduled to be paid only by means of regular payments, each period from and including a Regular Date falling in any year to but excluding the next Regular Date, where " Regular Date " means the day and month (but not the year) on which any Interest Payment Date falls other than the Interest Payment Date falling at the end of such irregular Interest Period. |
" Relevant Date " means, in relation to any payment, whichever is the later of (a) the date on which the payment in question first becomes due and (b) if the full amount payable has not been received in the Principal Financial Centre of the currency of payment by the Fiscal Agent on or prior to such due date, the date on which (the full amount having been so received) notice to that effect has been given to the Noteholders; | |
" Relevant Financial Centre " has the meaning given in the relevant Pricing Supplement provided, however, that in no event shall any location within the United States or its possessions be a Relevant Financial Centre for the purposes of any payments in respect of any Note; | |
" Relevant Jurisdiction " means the United States where the Issuer or the Guarantor, if applicable, is Deere or Deere Capital, Luxembourg where the Issuer is Deere Luxembourg, the Commonwealth of Australia where the Issuer is Deere Australia or Deere Credit Australia, the Netherlands where the Issuer is Deere Netherlands and Canada where the Issuer is Deere Canada or Deere Credit Canada; | |
" Relevant Screen Page " means the page, section or other part of a particular information service (including, without limitation, the Reuters Markets 3000 and the Moneyline Telerate Service) specified as the Relevant Screen Page in the relevant Pricing Supplement, or such other page, section or other part as may replace it on that information service or such other information service, in each case, as may be nominated by the Person providing or sponsoring the information appearing there for the purpose of displaying rates or prices comparable to the Reference Rate; | |
" Relevant Time " has the meaning given in the relevant Pricing Supplement; | |
" Reserved Matter " means any proposal to change any date fixed for payment of principal or interest in respect of the Notes, to reduce the amount of principal or interest payable on any date in respect of the Notes, to alter the method of calculating the amount of any payment in respect of the Notes or the date for any such payment, to change the currency of any payment under the Notes or to change the quorum requirements relating to meetings or the majority required to pass an Extraordinary Resolution; | |
" Sale and Lease-back Transactions" means any arrangement with any Person providing for the leasing to the Issuer, the Guarantor or any Material Subsidiary of any Important Property owned or |
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hereafter acquired by the Issuer, the Guarantor or such Material Subsidiary (except for temporary leases for a term, including any renewal thereof, of not more than three years and except for leases between the Issuer, the Guarantor and Material Subsidiary or between Material Subsidiaries), which Important Property has been or is to be sold or transferred by the Issuer, the Guarantor or such Material Subsidiary to such Person; | |
" Security Interest " means any mortgage, charge, pledge, lien or other security interest including, without limitation, anything analogous to any of the foregoing under the laws of any jurisdiction; | |
" Specified Currency " has the meaning given in the relevant Pricing Supplement; | |
" Specified Denomination(s) " has the meaning given in the relevant Pricing Supplement; | |
" Specified Office " has the meaning given in the Agency Agreement; | |
" Specified Period " has the meaning given in the relevant Pricing Supplement; | |
" Subsidiary " means any corporation a majority of the outstanding voting stock of which is owned, directly or indirectly, by the Issuer or by one or more other Subsidiaries of such Issuer. For the purposes of this definition, " voting stock " means stock having voting power for the election of directors, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency; | |
" Talon " means a talon for further Coupons; | |
" TARGET Settlement Day " means any day on which the Trans-European Automated Real-Time Gross Settlement Express Transfer (TARGET) System is open; | |
" Treaty " means the Treaty establishing the European Communities, as amended; | |
" Zero Coupon Note " means a Note specified as such in the relevant Pricing Supplement; | |
(b) Interpretation: | |
In these Conditions: | |
(i) | if the Notes are Zero Coupon Notes, references to Coupons and Couponholders are not applicable; |
(ii) | if Talons are specified in the relevant Pricing Supplement as being attached to the Notes at the time of issue, references to Coupons shall be deemed to include references to Talons; |
(iii) | if Talons are not specified in the relevant Pricing Supplement as being attached to the Notes at the time of issue, references to Talons are not applicable; |
(iv) | any reference to principal shall be deemed to include the Redemption Amount, any additional amounts in respect of principal which may be payable under Condition 12 ( Taxation ), any premium payable in respect of a Note and any other amount in the nature of principal payable pursuant to these Conditions; |
(v) | any reference to interest shall be deemed to include any additional amounts in respect of interest which may be payable under Condition 12 ( Taxation ) and any other amount in the nature of interest payable pursuant to these Conditions; |
(vi) | references to Notes being "outstanding" shall be construed in accordance with the Agency Agreement; and |
(vii) | if an expression is stated in Condition 2(a) to have the meaning given in the relevant Pricing Supplement, but the relevant Pricing Supplement gives no such meaning or specifies that such expression is "not applicable" then such expression is not applicable to the Notes. |
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3. Form, Denomination and Title | |
The Notes are issued in bearer form in the Specified Denomination(s) with Coupons and, if specified in the relevant Pricing Supplement, Talons attached at the time of issue. In the case of a Series of Notes with more than one Specified Denomination, Notes of one Specified Denomination will not be exchangeable for Notes of another Specified Denomination. Title to the Notes and the Coupons will pass by delivery. The holder of any Note or Coupon shall (except as otherwise required by law) be treated as its absolute owner for all purposes (whether or not it is overdue and regardless of any notice of ownership, trust or any other interest therein, any writing thereon or any notice of any previous loss or theft thereof) and no Person shall be liable for so treating such holder. | |
4. Status of the Notes and the Guarantees | |
(a) Status of the Senior Notes: | |
This Condition 4(a) is applicable in relation to Notes specified in the Pricing Supplement as being unsubordinated or not specified as being subordinated (" Senior Notes "). The Senior Notes constitute direct, general, unconditional and unsubordinated obligations of the Issuer which will at all times rank pari passu and without any preference among themselves and at least pari passu with all other present and future unsecured and unsubordinated obligations of the Issuer, save for such obligations as may be preferred by provisions of law that are both mandatory and of general application. | |
(b) Status of the Subordinated Notes: | |
(i) | This Condition 4(b)(i) is applicable only in relation to Notes which are specified in the Pricing Supplement as being subordinated (" Subordinated Notes ") and are issued by Deere or Deere Capital. Subordinated Notes issued by Deere or Deere Capital constitute direct, unsecured and subordinated obligations of Deere or Deere Capital, as the case may be, which will at all times rank pari passu without prejudice among themselves and at least pari passu and rateably with all other present and future unsecured and subordinated obligations of Deere or Deere Capital from time to time outstanding save for such obligations as may be preferred by provisions of law that are both mandatory and of general application. The rights and claims of holders of the Subordinated Notes issued by Deere or Deere Capital, as the case may be, will, in the event that Deere or Deere Capital, as the case may be, is wound-up, dissolved, liquidated or ceases to exist as a body corporate, excluding where such event res ults in there being a successor to Deere or Deere Capital, as the case may be, and the obligations under the Notes are assumed by that successor, be subordinated in right of payment to unsubordinated and unsecured creditors of Deere or Deere Capital, as the case may be. |
(ii) | This Condition 4(b)(ii) is applicable only in relation to Subordinated Notes issued by Deere Luxembourg. Subordinated Notes issued by Deere Luxembourg constitute direct, unsecured and subordinated obligations of Deere Luxembourg which will at all times rank pari passu without preference among themselves and at least pari passu and rateably with all other present and future unsecured and subordinated obligations of Deere Luxembourg from time to time outstanding save for such obligations as may be preferred by provisions of law that are both mandatory and of general application. In the event that Deere Luxembourg is liquidated pursuant to applicable provisions of the laws of Luxembourg, the rights and claims of holders of the Subordinated Notes issued by Deere Luxembourg will be subordinated in right of payment to all other unsubordinated and unsecured creditors of Deere Luxembourg. |
(c) | Guarantee by Deere of Notes issued by Deere Netherlands, Deere Canada, Deere Credit Canada and Deere Australia |
Deere has in the Deere Deed of Guarantee unconditionally and irrevocably guaranteed the due and punctual payment of all sums from time to time payable by Deere Netherlands, Deere Canada, Deere Credit Canada and Deere Australia in respect of Senior Notes issued by them. This Guarantee of the Senior Notes constitutes direct, general, unconditional and unsubordinated |
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obligations of Deere which will at all times rank at least pari passu with all other present and future unsubordinated and unsecured obligations of Deere, save for such obligations as may be preferred by provisions of law that are both mandatory and of general application; and | |
(d) | Guarantee by Deere Capital of Notes issued by Deere Luxembourg and Deere Credit Australia: |
Deere Capital has in the JDCC Deed of Guarantee: | |
(i) | unconditionally and irrevocably guaranteed the due and punctual payment of all sums from time to time payable by Deere Luxembourg and Deere Credit Australia in respect of Senior Notes issued by them. This Guarantee of the Senior Notes constitutes direct, general, unconditional and unsubordinated obligations of Deere Capital which will at all times rank at least pari passu with all other present and future unsubordinated and unsecured obligations of Deere Capital, save for such obligations as may be preferred by provisions of law that are both mandatory and of general application; and |
(ii) | unconditionally and irrevocably guaranteed the due and punctual payment of all sums from time to time payable by Deere Luxembourg in respect of Subordinated Notes. This Guarantee of such Subordinated Notes constitutes direct, unconditional and subordinated obligations of Deere Capital which will at all times rank at least pari passu with all other present and future subordinated and unsecured obligations of Deere Capital, save for such obligations as may be preferred by provisions of law that are both mandatory and of general application. The rights and claims of the beneficiaries of the guarantee of the Subordinated Notes will, in the event that Deere Capital is wound-up, dissolved, liquidated or ceases to exist as a body corporate, excluding where such event results in there being a successor to Deere Capital, and the obligations under the Subordinated Notes are assumed by that successor, be subordinated in right of payment to unsubordinated and unsecured creditors of Deere Capital. |
5. Negative Pledge with respect to Senior Notes | |
(a) | This Condition 5(a) is applicable only in relation to Senior Notes issued by Deere, Deere Netherlands, Deere Canada, Deere Credit Canada and Deere Australia. So long as any Senior Note remains outstanding, the relevant Issuer and Deere (as Guarantor) shall not and Deere (as Guarantor) shall not permit any Material Subsidiary to, issue, incur, assume or guarantee any debt (" Debt ") secured by any Security Interest (other than a Permitted Security Interest) upon any present or future Important Property, or upon any present or future shares of stock or indebtedness issued by any Material Subsidiary without (a) at the same time or prior thereto securing the Senior Notes equally and rateably therewith or (b) providing such other security for the Senior Notes as may be approved by an Extraordinary Resolution of Noteholders. |
Notwithstanding the foregoing, the relevant Issuer or Deere (as Guarantor) or any Material Subsidiary may, without (a) equally and rateably securing the Senior Notes or (b) providing such other security for the Senior Notes as may be approved by an Extraordinary Resolution of Noteholders, issue, incur, assume or guarantee Debt secured by a Security Interest which does not constitute a Permitted Security Interest, up to an aggregate amount which, together with the sum of (A) all other Debt issued or incurred by the relevant Issuer, Deere (as Guarantor) and its Material Subsidiaries secured by Security Interests (other than a Permitted Security Interest) which would otherwise be subject to the foregoing restrictions and (B) the Attributable Debt in respect of Sale and Lease-back Transactions in existence at such time does not at such time (other than Excluded Sale and Lease-back Transactions) exceed 5 per cent. of the Consolidated Net Worth of Deere, as shown on the audited consolidated balance sheet contai ned in the latest annual report of Deere. | |
(b) | This Condition 5(b) is applicable only in relation to Senior Notes issued by Deere Capital, Deere Luxembourg and Deere Credit Australia. So long as any Senior Notes remain outstanding, the relevant Issuer and Deere Capital (as Guarantor) shall not and Deere Capital (as Guarantor) shall not permit any of its Subsidiaries to issue, incur, assume or guarantee any Debt secured by any Security Interest (other than a Permitted Lien) on any of its property or |
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assets, or any of the property or assets of any of its Subsidiaries, without (a) at the same time or prior thereto securing the Senior Notes equally and rateably therewith or (b) providing such other security for the Senior Notes as may be approved by an Extraordinary Resolution of Noteholders. | |
6. Fixed Rate Note Provisions | |
(a) Application: | |
This Condition 6 ( Fixed Rate Note Provisions) is applicable to the Notes only if the Fixed Rate Note Provisions are specified in the relevant Pricing Supplement as being applicable. | |
(b) Accrual of Interest: | |
The Notes bear interest from, and including, the Interest Commencement Date at the Rate of Interest payable in arrear on each Interest Payment Date, subject as provided in Condition 11 ( Payments ). Each Note will cease to bear interest from the due date for final redemption unless, upon due presentation, payment of the Redemption Amount is improperly withheld or refused, in which case it will continue to bear interest in accordance with this Condition 6 (as well after as before judgment) until whichever is the earlier of (i) the day on which all sums due in respect of such Note up to that day are received by or on behalf of the relevant Noteholder and (ii) the day which is seven days after the Fiscal Agent has notified the Noteholders that it has received all sums due in respect of the Notes up to such seventh day (except to the extent that there is any subsequent default in payment). | |
(c) Fixed Coupon Amount: | |
The amount of interest payable in respect of each Note for any Interest Period shall be the relevant Fixed Coupon Amount and, if the Notes are in more than one Specified Denomination, shall be the relevant Fixed Coupon Amount in respect of the relevant Specified Denomination. | |
(d) Calculation of Interest Amount: | |
The amount of interest payable in respect of each Note for any period for which a Fixed Coupon Amount is not specified shall be calculated by applying the Rate of Interest to the principal amount of such Note, multiplying the product by the relevant Day Count Fraction and rounding the resulting figure in accordance with Condition 21. For this purpose a " sub-unit " means, in the case of any currency other than euro, the lowest amount of such currency that is available as legal tender in the country of such currency and, in the case of euro, means one cent. | |
7. Floating Rate Note and Index-Linked Interest Note Provisions | |
(a) Application: | |
This Condition 7 ( Floating Rate Note and Index-Linked Interest Note Provisions ) is applicable to the Notes only if the Floating Rate Note Provisions or the Index-Linked Interest Note Provisions are specified in the relevant Pricing Supplement as being applicable. | |
(b) Accrual of interest: | |
The Notes bear interest from the Interest Commencement Date at the Rate of Interest payable in arrear on each Interest Payment Date, subject as provided in Condition 11 ( Payments ). Each Note will cease to bear interest from the due date for final redemption unless, upon due presentation, payment of the Redemption Amount is improperly withheld or refused, in which case it will continue to bear interest in accordance with this Condition (as well after as before judgment) until whichever is the earlier of (i) the day on which all sums due in respect of such Note up to that day are received by or on behalf of the relevant Noteholder and (ii) the day which is seven days after the Fiscal Agent has notified the Noteholders that it has received all sums due in respect of the Notes up to such seventh day (except to the extent that there is any subsequent default in payment). |
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(c) Screen Rate Determination: | ||
If Screen Rate Determination is specified in the relevant Pricing Supplement as the manner in which the Rate(s) of Interest is/are to be determined, the Rate of Interest applicable to the Notes for each Interest Period will be determined by the Calculation Agent on the following basis: | ||
(i) | if the Reference Rate is a composite quotation or customarily supplied by one entity, the Calculation Agent will determine the Reference Rate which appears on the Relevant Screen Page as of the Relevant Time on the relevant Interest Determination Date; | |
(ii) | in any other case, the Calculation Agent will determine the arithmetic mean of the Reference Rates which appear on the Relevant Screen Page as of the Relevant Time on the relevant Interest Determination Date; | |
(iii) | if, in the case of (i) above, such rate does not appear on that page or, in the case of (ii) above, fewer than two such rates appear on that page or if, in either case, the Relevant Screen Page is unavailable, the Calculation Agent will: | |
(A) | request the principal Relevant Financial Centre office of each the Reference Banks to provide a quotation of the Reference Rate at approximately the Relevant Time on the Interest Determination Date to prime banks in the Relevant Financial Centre interbank market in an amount that is representative for a single transaction in that market at that time; and | |
(B) | determine the arithmetic mean of such quotations; and | |
(iv) | if fewer than two such quotations are provided as requested, the Calculation Agent will determine the arithmetic mean of the rates (being the nearest to the Reference Rate, as determined by the Calculation Agent) quoted by major banks in the Principal Financial Centre of the Specified Currency, selected by the Calculation Agent, at approximately 11.00 a.m. (local time in the Principal Financial Centre of the Specified Currency) on the first day of the relevant Interest Period for loans in the Specified Currency to leading European banks for a period equal to the relevant Interest Period and in an amount that is representative for a single transaction in that market at that time, | |
and the Rate of Interest for such Interest Period shall be the sum of the Margin and the rate or (as the case may be) the arithmetic mean so determined; provided, however, that if the Calculation Agent is unable to determine a rate or (as the case may be) an arithmetic mean in accordance with the above provisions in relation to any Interest Period, the Rate of Interest applicable to the Notes during such Interest Period will be the sum of the Margin and the rate (or as the case may be) the arithmetic mean last determined in relation to the Notes in respect of a preceding Interest Period. | ||
(d) ISDA Determination: | ||
If ISDA Determination is specified in the relevant Pricing Supplement as the manner in which the Rate(s) of Interest is/are to be determined, the Rate of Interest applicable to the Notes for each Interest Period will be the sum of the Margin and the relevant ISDA Rate where " ISDA Rate " in relation to any Interest Period means a rate equal to the Floating Rate (as defined in the ISDA Definitions) that would be determined by the Calculation Agent under an interest rate swap transaction if the Calculation Agent were acting as Calculation Agent for that interest rate swap transaction under the terms of an agreement incorporating the ISDA Definitions and under which: | ||
(i) | the Floating Rate Option (as defined in the ISDA Definitions) is as specified in the relevant Pricing Supplement; | |
(ii) | the Designated Maturity (as defined in the ISDA Definitions) is a period specified in the relevant Pricing Supplement; and | |
(iii) | the relevant Reset Date (as defined in the ISDA Definitions) is either (A) if the relevant Floating Rate Option is based on the London inter-bank offered rate (LIBOR) for a currency, the first day of that Interest Period or (B) in any other case, as specified in the relevant Pricing Supplement. |
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(e) Index-Linked Interest: |
If the Index-Linked Interest Note Provisions are specified in the relevant Pricing Supplement as being applicable, the Rate(s) of Interest applicable to the Notes for each Interest Period will be determined in the manner specified in the relevant Pricing Supplement. |
(f) Maximum or Minimum Rate of Interest: |
If any Maximum Rate of Interest or Minimum Rate of Interest is specified in the relevant Pricing Supplement, then the Rate of Interest shall in no event be greater than the maximum or be less than the minimum so specified. If no Minimum Rate of Interest is specified in the relevant Pricing Supplement, then the Minimum Rate of Interest in respect of each relevant Interest Period shall be deemed to be zero, and in no event shall the Rate of Interest calculated in accordance with this Condition 7 be less than zero. |
(g) Calculation of Interest Amount: |
The Calculation Agent will, as soon as practicable after the time at which the Rate of Interest is to be determined in relation to each Interest Period, calculate the Interest Amount payable in respect of each Note for such Interest Period. The Interest Amount will be calculated by applying the Rate of Interest for such Interest Period to the principal amount of such Note during such Interest Period and multiplying the product by the relevant Day Count Fraction. |
(h) Calculation of other amounts: |
If the relevant Pricing Supplement specifies that any other amount is to be calculated by the Calculation Agent, the Calculation Agent will, as soon as practicable after the time or times at which any such amount is to be determined, calculate the relevant amount. The relevant amount will be calculated by the Calculation Agent in the manner specified in the relevant Pricing Supplement. |
(i) Publication: |
The Calculation Agent will cause each Rate of Interest and Interest Amount determined by it, together with the relevant Interest Payment Date, and any other amount(s) required to be determined by it together with any relevant payment date(s) to be notified to the Paying Agents and each stock exchange (if any) on which the Notes are then listed as soon as practicable after such determination but (in the case of each Rate of Interest, Interest Amount and Interest Payment Date) in any event not later than the first day of the relevant Interest Period. Notice thereof shall also promptly be given to the Noteholders. The Calculation Agent will be entitled to recalculate any Interest Amount (on the basis of the foregoing provisions) without notice in the event of an extension or shortening of the relevant Interest Period. |
(j) Notifications etc: |
All notifications, opinions, determinations, certificates, calculations, quotations and decisions given, expressed, made or obtained for the purposes of this Condition by the Calculation Agent will (in the absence of manifest error) be binding on the Issuer, the Guarantor, the Paying Agents, the Noteholders and the Couponholders and (subject as aforesaid) no liability to any such Person will attach to the Calculation Agent in connection with the exercise or non-exercise by it of its powers, duties and discretions for such purposes. |
8. Zero Coupon Note Provisions |
(a) Application: |
This Condition 8 ( Zero Coupon Note Provisions ) is applicable to the Notes only if the Zero Coupon Note Provisions are specified in the relevant Pricing Supplement as being applicable. |
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(b) Late payment on Zero Coupon Notes: | |
If the Redemption Amount payable in respect of any Zero Coupon Note is improperly withheld or refused, the Redemption Amount shall thereafter be an amount equal to the sum of: | |
(i) | the Reference Price; and |
(ii) | the product of the Accrual Yield (compounded annually) being applied to the Reference Price from (and including) the Issue Date to (but excluding) whichever is the earlier of (i) the day on which all sums due in respect of such Note up to that day are received by or on behalf of the relevant Noteholder and (ii) the day which is seven days after the Fiscal Agent has notified the Noteholders that it has received all sums due in respect of the Notes up to such seventh day (except to the extent that there is any subsequent default in payment). |
9. Dual Currency Note Provisions | |
(a) Application: | |
This Condition 9 ( Dual Currency Note Provisions ) is applicable to the Notes only if the Dual Currency Note Provisions are specified in the relevant Pricing Supplement as being applicable. | |
(b) Rate of Interest: | |
If the rate or amount of interest falls to be determined by reference to an exchange rate, the rate or amount of interest payable shall be determined in the manner specified in the relevant Pricing Supplement. | |
10. Redemption and Purchase | |
(a) Scheduled redemption: | |
Unless previously redeemed, or purchased and cancelled, the Notes will be redeemed at their Final Redemption Amount on the Maturity Date, subject as provided in Condition 11 ( Payments ). | |
(b) Redemption for tax reasons: | |
The Notes may be redeemed at the option of the Issuer (but, in the case of Subordinated Notes issued by Deere Luxembourg, subject to the prior written approval thereto having been obtained from the CSSF) in whole, but not in part: | |
(i) | at any time (if neither the Floating Rate Note Provisions or the Index-Linked Interest Note Provisions are specified in the relevant Pricing Supplement as being applicable); or |
(ii) | on any Interest Payment Date (if the Floating Rate Note Provisions or the Index-Linked Interest Note Provisions are specified in the relevant Pricing Supplement as being applicable), |
on giving not less than 30 nor more than 60 days' notice to the Noteholders (which notice shall be irrevocable), at their Early Redemption Amount (Tax), together with interest accrued (if any) to the date fixed for redemption, if: | |
(A) | (1) the Issuer has or will become obliged to pay additional amounts as provided or referred to in Condition 12 ( Taxation ) as a result of any change in, or amendment to, the laws or regulations of the applicable Relevant Jurisdiction or any political subdivision or any authority thereof or therein having power to tax, or any change in the application or official interpretation of such laws or regulations (including a holding by a court of competent jurisdiction), which change or amendment becomes effective on or after the date of issue of the first Tranche of the Notes and (2) such obligation cannot be avoided by the Issuer taking reasonable measures available to it; or |
(B) | (1) the Guarantor has or (if a demand was made under the Guarantee of the Notes) would become obliged to pay additional amounts as provided or referred to in the Guarantee of the Notes or the Guarantor has or will become obliged to make any such withholding or |
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deduction as is referred to in the Guarantee of the Notes from any amount paid by it to the Issuer in order to enable the Issuer to make a payment of principal or interest in respect of the Notes, in either case as a result of any change in, or amendment to, the laws or regulations of the United States or any political subdivision or any authority thereof or therein having power to tax, or any change in the application or official interpretation of such laws or regulations (including a holding by a court of competent jurisdiction), which change or amendment becomes effective on or after the date of issue of the first Tranche of the Notes, and (2) such obligation cannot be avoided by the Guarantor taking reasonable measures available to it, | |
provided, however, that no such notice of redemption shall be given earlier than : | |
(1) | where the Notes may be redeemed at any time, 90 days prior to the earliest date on which the Issuer or the Guarantor would be obliged to pay such additional amounts or the Guarantor would be obliged to make such withholding or deduction if a payment in respect of the Notes were then due or (as the case may be) a demand under the Guarantee of the Notes were then made; or |
(2) |
where the Notes may be redeemed only on an Interest Payment Date, 60 days prior to the Interest Payment Date occurring immediately before the earliest date on which the Issuer or the Guarantor would be obliged to pay
such additional amounts or the Guarantor would be obliged to make such withholding or deduction if a payment in respect of the Notes were then due or (as the case may be) a demand under the Guarantee of the Notes were then made.
Prior to the publication of any notice of redemption pursuant to this paragraph, the Issuer shall deliver or procure that there is delivered to the Fiscal Agent (1) a certificate signed by two directors of the Issuer stating that the Issuer is entitled to effect such redemption and setting forth a statement of facts showing that the conditions precedent to the right of the Issuer so to redeem have occurred and (2) an opinion of independent legal advisers in the applicable Relevant Jurisdiction to the effect that the Issuer or (as the case may be) the Guarantor has or will become obliged to pay such additional amounts or (as the case may be) the Guarantor has or will become obliged to make such withholding or deduction as a result of such change or amendment. Upon the expiry of any such notice as is referred to in this Condition 10(b), the Issuer shall be bound to redeem the Notes in accordance with this Condition 10(b). |
(c) Redemption at the option of the Issuer: | |
If the Call Option is specified in the relevant Pricing Supplement as being applicable, the Notes may (but, in the case of Subordinated Notes issued by Deere Luxembourg, subject to the prior written approval thereto having been obtained from the CSSF) be redeemed at the option of the Issuer in whole or, if so specified in the relevant Pricing Supplement, in part on any Optional Redemption Date (Call) at the relevant Optional Redemption Amount (Call) on the Issuer's giving not less than 30 nor more than 60 days' notice to the Noteholders (which notice shall be irrevocable and shall oblige the Issuer to redeem the Notes or, as the case may be, the Notes specified in such notice on the relevant Optional Redemption Date (Call) at the Optional Redemption Amount (Call) plus accrued interest (if any) to such date). | |
(d) Partial redemption: | |
If the Notes are to be redeemed in part only on any date in accordance with Condition 10(c) ( Redemption at the option of the Issuer ), the Notes to be redeemed shall be selected by the drawing of lots in such place as the Fiscal Agent approves and in such manner as the Fiscal Agent considers appropriate, subject to compliance with applicable law and the rules of each stock exchange on which the Notes are then listed, and the notice to Noteholders referred to in Condition 10(c) ( Redemption at the option of the Issuer ) shall specify the serial numbers of the Notes so to be redeemed. If any Maximum Redemption Amount or Minimum Redemption Amount is specified in the relevant Pricing Supplement, then the Optional Redemption Amount (Call) shall in no event be greater than the maximum or be less than the minimum so specified. |
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(e) Redemption at the option of Noteholders: | |
If the Put Option is specified in the relevant Pricing Supplement as being applicable, the Issue shall (but, in the case of Subordinated Notes issued by Deere Luxembourg, subject to the prior written approval thereto having been obtained from the CSSF) , at the option of the holder of any Note redeem such Note on the Optional Redemption Date (Put) specified in the relevant Put Option Notice at the relevant Optional Redemption Amount (Put) together with interest (if any) accrued to such date. In order to exercise the option contained in this Condition 10(e), the holder of a Note must, not less than 30 nor more than 60 days before the relevant Optional Redemption Date (Put), deposit with any Paying Agent such Note together with all unmatured Coupons relating thereto and a duly completed Put Option Notice in the form obtainable from any Paying Agent. The Paying Agent with which a Note is so deposited shall deliver a duly completed Put Option Receipt to the depositing Noteholder. No Note, once deposited with a duly completed Put Option Notice in accordance with this Condition 10(e), may be withdrawn; provided, however , that if, prior to the relevant Optional Redemption Date (Put), any such Note becomes immediately due and payable or, upon due presentation of any such Note on the relevant Optional Redemption Date (Put), payment of the redemption moneys is improperly withheld or refused, the relevant Paying Agent shall mail notification thereof to the depositing Noteholder at such address as may have been given by such Noteholder in the relevant Put Option Notice and shall hold such Note at its Specified Office for collection by the depositing Noteholder against surrender of the relevant Put Option Receipt. For so long as any outstanding Note is held by a Paying Agent in accordance with this Condition 10(e), the depositor of such Note and not such Paying Agent shall be deemed to be the holder of such Note for all purposes. | |
(f) No other redemption: | |
The Issuer shall not be entitled to redeem the Notes otherwise than as provided in paragraphs (a) to (e) above. | |
(g) Early redemption of Zero Coupon Notes: | |
Unless otherwise specified in the relevant Pricing Supplement, the Redemption Amount payable on redemption of a Zero Coupon Note at any time before the Maturity Date shall be an amount equal to the sum of: | |
(i) | the Reference Price; and |
(ii) | the product of the Accrual Yield (compounded annually) being applied to the Reference Price from (and including) the Issue Date to (but excluding) the date fixed for redemption or (as the case may be) the date upon which the Note becomes due and payable. |
Where such calculation is to be made for a period which is not a whole number of years, the calculation in respect of the period of less than a full year shall be made on the basis of such Day Count Fraction as may be specified in the Pricing Supplement for the purposes of this Condition 10(g) or, if none is so specified, a Day Count Fraction of 30E/360. | |
(h) Purchase: | |
The Issuer, the Guarantor or any of their respective Subsidiaries may (but, in the case of Subordinated Notes issued by Deere Luxembourg, subject to the prior written approval thereto having been obtained from the CSSF) at any time after 183 days following the Issue Date purchase Notes in the open market or otherwise and at any price, provided that all unmatured Coupons are purchased therewith. | |
(i) Cancellation: | |
All Notes so redeemed or purchased by the Issuer, the Guarantor or any of their respective Subsidiaries and any unmatured Coupons attached to or surrendered with them shall be cancelled and may not be reissued or resold. |
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11. Payments | ||
(a) Principal: | ||
Payments of principal shall be made only against presentation and (provided that payment is made in full) surrender of Notes at the Specified Office of any Paying Agent outside the United States and its possessions by cheque drawn in the Specified Currency in which the payment is due on, or by transfer to an account denominated in that Specified Currency (or, if that Specified Currency is euro, any other account to which euro may be credited or transferred) and maintained by the payee with, a bank in the Principal Financial Centre of that Specified Currency (in the case of a sterling cheque, a town clearing branch of a bank in the City of London); provided, however, that in no event shall any payment be made to an account maintained by a payee in the United States or its possessions or to an address in the United States or its possessions. | ||
(b) Interest: | ||
Payments of interest shall, subject to paragraph (g) below, be made only against presentation and (provided that payment is made in full) surrender of the appropriate Coupons at the Specified Office of any Paying Agent outside the United States in the manner described in paragraph (a) above. | ||
(c) Payments subject to fiscal laws: | ||
All payments in respect of the Notes are subject in all cases to any applicable fiscal or other laws and regulations in the place of payment, but without prejudice to the provisions of Condition 12 ( Taxation ). No commissions or expenses shall be charged to the Noteholders or Couponholders in respect of such payments. | ||
(d) Deductions for unmatured Coupons: | ||
If the relevant Pricing Supplement specifies that the Fixed Rate Note Provisions are applicable and a Note is presented without all unmatured Coupons relating thereto: | ||
(i) | if the aggregate amount of the missing Coupons is less than or equal to the amount of principal due for payment, a sum equal to the aggregate amount of the missing Coupons will be deducted from the amount of principal due for payment; provided, however, that if the gross amount available for payment is less than the amount of principal due for payment, the sum deducted will be that proportion of the aggregate amount of such missing Coupons which the gross amount actually available for payment bears to the amount of principal due for payment; | |
(ii) | if the aggregate amount of the missing Coupons is greater than the amount of principal due for payment: | |
(A) | so many of such missing Coupons shall become void (in inverse order of maturity) as will result in the aggregate amount of the remainder of such missing Coupons (the " Relevant Coupons ") being equal to the amount of principal due for payment ; provided, however, that where this sub-paragraph would otherwise require a fraction of a missing Coupon to become void, such missing Coupon shall become void in its entirety; and | |
(B) | a sum equal to the aggregate amount of the Relevant Coupons (or, if less, the amount of principal due for payment) will be deducted from the amount of principal due for payment; provided, however, that , if the gross amount available for payment is less than the amount of principal due for payment, the sum deducted will be that proportion of the aggregate amount of the Relevant Coupons (or, as the case may be, the amount of principal due for payment) which the gross amount actually available for payment bears to the amount of principal due for payment. | |
Each sum of principal so deducted shall be paid in the manner provided in paragraph (a) above against presentation and (provided that payment is made in full) surrender of the relevant missing Coupons. |
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(e) Unmatured Coupons void: | |
If the relevant Pricing Supplement specifies that this Condition 11(e) is applicable or that the Floating Rate Note Provisions or the Index-Linked Interest Note Provisions are applicable, on the due date for final redemption of any Note or early redemption of such Note pursuant to Condition 10(b) ( Redemption for tax reasons ), Condition 10(e) ( Redemption at the option of Noteholders ), Condition 10(c) ( Redemption at the option of the Issuer ) or Condition 13 ( Events of Default ), all unmatured Coupons relating thereto (whether or not still attached) shall become void and no payment will be made in respect thereof. | |
(f) Payments on business days: | |
If the due date for payment of any amount in respect of any Note or Coupon is not a Payment Business Day in the place of presentation, the holder shall not be entitled to payment in such place of the amount due until the next succeeding Payment Business Day in such place and shall not be entitled to any further interest or other payment in respect of any such delay. | |
(g) Payments other than in respect of matured Coupons: | |
Payments of interest other than in respect of matured Coupons shall be made only against presentation of the relevant Notes at the Specified Office of any Paying Agent outside the United States. | |
(h) Partial payments: | |
If a Paying Agent makes a partial payment in respect of any Note or Coupon presented to it for payment, such Paying Agent will endorse thereon a statement indicating the amount and date of such payment. | |
(i) Exchange of Talons: | |
On or after the maturity date of the final Coupon which is (or was at the time of issue) part of a Coupon Sheet relating to the Notes, the Talon forming part of such Coupon Sheet may be exchanged at the Specified Office of the Fiscal Agent for a further Coupon Sheet (including, if appropriate, a further Talon but excluding any Coupons in respect of which claims have already become void pursuant to Condition 14 ( Prescription ). Upon the due date for redemption of any Note, any unexchanged Talon relating to such Note shall become void and no Coupon will be delivered in respect of such Talon. | |
12. Taxation | |
(a) Gross up: | |
All payments of principal and interest in respect of the Notes and the Coupons by or on behalf of the Issuer or the Guarantor shall be made free and clear of, and without withholding or deduction for, any taxes, duties, assessments or governmental charges of whatsoever nature imposed, levied, collected, withheld or assessed by the applicable Relevant Jurisdiction (in the case of payments by the Issuer) or the United States of America (in the case of payments by the Guarantor) or any political subdivision or any authority thereof or therein having power to tax, unless such withholding or deduction is required by law. In that event, the Issuer or (as the case may be) the Guarantor shall pay such additional amounts as will result in the receipt by the Noteholders and the Couponholders of such amounts as would have been received by them if no such withholding or deduction had been required, except that no such additional amounts shall be payable in respect of any Note or Coupon presented for payment: | |
(i) | in the applicable Relevant Jurisdiction; or |
(ii) | by, or by a third party on behalf of, a holder which is liable to such taxes, duties, assessments or governmental charges in respect of such Note or Coupon by reason of its (or a fiduciary, settlor, member or shareholder, beneficiary of, or possessor of a power over, such holder, if such holder is an estate, trust, partnership or corporation) having some present or former |
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connection with the applicable Relevant Jurisdiction (including being or having been a citizen or resident of such Relevant Jurisdiction or being or having been engaged in trade or business or present therein having or having had a permanent establishment therein) other than the mere holding or such Note or Coupon; or | |
(iii) | by a holder which is or was a personal holding company, foreign personal holding company or passive foreign investment company with respect to the United States or a corporation that accumulates earnings to avoid United States federal income tax; or |
(iv) | if such tax is an estate, inheritance, gift, sales, transfer or personal property tax or any similar tax, assessment, or governmental charge; or |
(v) | if such amount is payable otherwise than by withholding from a payment on such Note or Coupon or such amount is required to be withheld by a paying agent, if such payment can be made without such withholding by any other paying agent under the Agency Agreement; or |
(vi) | if such tax, duty assessment or governmental charge would not have been imposed but for the failure of such holder to comply with applicable certificate, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Relevant Jurisdiction of the holder or beneficial owner of such Note if such compliance is required as a precondition to relief or exemption from withholding or deduction or all or part of such tax, duty assessment or governmental charge; or |
(vii) | by a holder which is or has been a "10 per cent. shareholder" of the obligor of the Note as defined in Section 871(h)(3) of the United States Internal Revenue Code or any successor provisions; or |
(viii) | more than 30 days after the Relevant Date except to the extent that the relevant holder would have been entitled to such additional amounts if it had presented such Note or Coupon for payment on the last day of such period of 30 days; or |
(ix) | where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to any European Union Directive on the taxation of savings implementing the conclusions of the ECOFIN Council meeting of 26-27 November 2000 or any law implementing or complying with, or introduced in order to conform to, such Directive; or |
(x) | by or on behalf of a holder who would have been able to avoid such withholding or deduction by presenting the relevant Note or Coupon to another Paying Agent in a Member State of the European Union; or |
(xi) | in the case of any combination of items (i) through (x); or |
(xii) | in respect of payment by Deere Australia or Deere Credit Australia, by, or by a third party on behalf of, a holder who could lawfully avoid (but has not so avoided) such deduction or withholding by complying or procuring that any third party complies with any statutory requirements or by making or procuring that any third party makes a declaration of nonresidence or other similar claim for exemption to any tax authority in the place where the relevant Note or Coupon is presented for payment; or |
(xiii) | in respect of payment by Deere Australia or Deere Credit Australia, by, or by a third party on behalf of, a holder who is liable to such taxes, duties, assessments or governmental charges in a respect of such Note or Coupon by reason of his being an associate of the Issuer for the purposes of Section 128F(6) of the Income Tax Assessment Act 1936 of Australia. |
nor shall additional amounts be paid to a holder that is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor of such fiduciary or partnership or beneficial owner would not have been entitled to such additional amounts had such beneficiary, settlor or beneficial owner been the holder of the Note. |
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(b) Taxing jurisdiction: | |
If the Issuer or the Guarantor becomes subject at any time to any taxing jurisdiction other than the Relevant Jurisdiction or the United States respectively, references in these Conditions to the Relevant Jurisdiction or the United States shall be construed as references to the Relevant Jurisdiction or (as the case may be) the United States and/or such other jurisdiction. | |
13. Events of Default | |
If any of the following events occurs and is continuing: | |
(a) | Non-payment of interest: default in the payment of any interest upon any Note of that Series or any related Coupon, when such interest or Coupon becomes due and payable, and continuance of such default for a period of 30 days; or |
(b) | Non-payment of principal: default in the payment of the principal of (or premium, if any, on) any Note of that Series when it becomes due and payable; or |
(c) | Breach of other obligations: default in the performance, or breach, of any covenant or agreement of the Issuer (or, if applicable, the Guarantor) in respect of the Notes of the relevant Series, the Agency Agreement or the Deed of Guarantee (other than a covenant or warranty in respect of the Notes of such Series, a default in the performance of which or the breach of which is elsewhere in this Condition specifically dealt with or which has expressly been included in such Notes solely for the benefit of Series of Notes other than that Series) and continuance of such default or breach for a period of 60 days after there has been given, by registered or certified mail, to the Issuer or, if applicable, the Guarantor or the Specified Office of the Fiscal Agent by Noteholders of at least 25 per cent. in principal amount of Notes outstanding of that Series a written notice specifying such default or breach and requiring it to be remedied stating that such notice is a "Notice of Default"; or |
(d) | Insolvency etc: in the case of Notes issued by Deere Luxembourg, Deere Australia, Deere Credit Australia, Deere Netherlands, Deere Canada and Deere Credit Canada (i) such Issuer or its Subsidiaries becomes insolvent or is unable to pay its debts as they fall due, (ii) an administrator or liquidator of the Issuer, or the whole or a substantial part of the undertaking, assets and revenues of the Issuer, is appointed (or application for any such appointment is made), (iii) the Issuer takes any action for a readjustment or deferment of any of its obligations or makes a general assignment or an arrangement or composition with or for the benefit of its creditors or declares a moratorium in respect of any of its Indebtedness or any Guarantee of any Indebtedness given by it or (iv) the Issuer is ordered by a court of competent jurisdiction to cease to carry on all or any substantial part of its business (otherwise than, in the case of the Issuer, for the purposes of or pursuant to an amalgamatio n, reorganisation or restructuring whilst solvent and in the case of a Subsidiary of the Issuer, for the purposes of or pursuant to any amalgamation, reorganisation or restructuring); or |
(e) | Bankruptcy, etc of Deere or Deere Capital: in the case of Notes issued by or guaranteed by Deere or Deere Capital (i) Deere or Deere Capital (as the case may be) pursuant to or within the meaning of any Bankruptcy Law commences a voluntary case, or consents to the entry of an order for relief against it in an involuntary case, or consents to the appointment of a Custodian of it or for all or substantially all of its property or makes a general assignment for the benefit of its creditors; or (ii) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that is for relief against Deere or Deere Capital (as the case may be) in an involuntary case, or appoints a Custodian of it or for all or substantially all of its property, or orders the liquidation of it and the order or decree remains unstayed and in effect for 90 days. In this Condition, the term " Bankruptcy Law " means title 11, U.S. Code or any similar Federal or State law for the relief of debtors. T he term "Custodian" means any receiver, trustee, assignee, liquidator or other similar official under any Bankruptcy law; or |
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(f) | Insolvency of Deere Luxembourg: in the case of Subordinated Notes issued by Deere Luxembourg, the liquidation of Deere Luxembourg pursuant to applicable provisions of the laws of Luxembourg, |
then, (i) any Senior Note of any Issuer or any Subordinated Note issued by Deere or Deere Capital or, in accordance with the circumstances described in Condition 13(f) only, any Subordinated Note issued by Deere Luxembourg, may, by written notice addressed by the holder thereof to the Issuer and the Guarantor and delivered to the Issuer and the Guarantor or to the Specified Office of the Fiscal Agent, be declared immediately due and payable, whereupon it shall become immediately due and payable at its Early Termination Amount together with accrued interest (if any) without further action or formality; or (ii) unless otherwise provided in the relevant Pricing Supplement, save in the case of Condition 13(f), any Subordinated Note issued by Deere Luxembourg may, subject to the prior written approval thereto having been obtained from the CSSF and by written notice addressed by the holder thereof to the Issuer and the Guarantor and delivered to the Issuer and the Guarantor or to the Specified Office of the Fis cal Agent, be declared immediately due and payable, whereupon it shall become immediately due and payable at its Early Termination Amount together with accrued interest (if any) without further action or formality and each holder of such Subordinated Note may initiate proceedings for the liquidation of Deere Luxembourg in Luxembourg but not elsewhere but may take no other action in respect of such default. | |
14. Prescription | |
Claims for principal shall become void unless the relevant Notes are presented for payment within ten years of the appropriate Relevant Date. Claims for interest shall become void unless the relevant Coupons are presented for payment within five years of the appropriate Relevant Date. | |
15. Replacement of Notes and Coupons | |
If any Note or Coupon is lost, stolen, mutilated, defaced or destroyed, it may be replaced at the Specified Office of the Fiscal Agent (and, if the Notes are then listed on any stock exchange which requires the appointment of a Paying Agent in any particular place, the Paying Agent having its Specified Office in the place required by such stock exchange), subject to all applicable laws and stock exchange requirements, upon payment by the claimant of the expenses incurred in connection with such replacement and on such terms as to evidence, security, indemnity and otherwise as the Issuer may reasonably require. Mutilated or defaced Notes or Coupons must be surrendered before replacements will be issued. | |
16. Agents | |
In acting under the Agency Agreement and in connection with the Notes and the Coupons, the Paying Agents act solely as agents of the Issuer and the Guarantor and do not assume any obligations towards or relationship of agency or trust for or with any of the Noteholders or Couponholders. | |
The initial Paying Agents and their initial Specified Offices are listed below. The initial Calculation Agent (if any) is specified in the relevant Pricing Supplement. The Issuer and the Guarantor reserve the right at any time to vary or terminate the appointment of any Paying Agent and to appoint a successor fiscal agent or Calculation Agent and additional or successor paying agents; provided, however , that : | |
(a) | the Issuer and the Guarantor shall at all times maintain a Fiscal Agent; and |
(b) | if a Calculation Agent is specified in the relevant Pricing Supplement, the Issuer and the Guarantor shall at all times, whilst any such Note remains outstanding, maintain a Calculation Agent; and |
(c) | if and for so long as the Notes are listed on any stock exchange which requires the appointment of a Paying Agent in any particular place, the Issuer and the Guarantor shall maintain a Paying Agent having its Specified Office in the place required by the rules of such stock exchange. |
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The Issuers and the Guarantors undertake that, if the conclusions of the ECOFIN Council meeting of 26-27 November 2000 are implemented, they will ensure that they maintain a Paying Agent in a Member State of the European Union that will not be obliged to withhold or deduct tax pursuant to the Directive. |
Notice of any change in any of the Paying Agents or in their Specified Offices shall promptly be given to the Noteholders. |
17. Meetings of Noteholders; Modification and Waiver |
(a) Meetings of Noteholders: |
The Agency Agreement contains provisions for convening meetings of Noteholders to consider matters relating to the Notes, including the modification of any provision of these Conditions. Any such modification may be made if sanctioned by an Extraordinary Resolution. Such a meeting may be convened by the Issuer and the Guarantor (acting together) and shall be convened by them upon the request in writing of Noteholders holding not less than one-tenth of the aggregate principal amount of the outstanding Notes. The quorum at any meeting convened to vote on an Extraordinary Resolution will be two or more Persons holding or representing one more than half of the aggregate principal amount of the outstanding Notes or, at any adjourned meeting, two or more Persons being or representing Noteholders whatever the principal amount of the Notes held or represented; provided, however, that Reserved Matters may only be sanctioned by an Extraordinary Resolution passed at a meeting of Noteholders at which two or mo re Persons holding or representing not less than three-quarters or, at any adjourned meeting, one quarter of the aggregate principal amount of the outstanding Notes form a quorum. Any Extraordinary Resolution duly passed at any such meeting shall be binding on all the Noteholders and Couponholders, whether present or not. |
In addition, a resolution in writing signed by or on behalf of all Noteholders who for the time being are entitled to receive notice of a meeting of Noteholders will take effect as if it were an Extraordinary Resolution. Such a resolution in writing may be contained in one document or several documents in the same form, each signed by or on behalf of one or more Noteholders. |
(b) Modification: |
The Notes, these Conditions and the Deeds of Guarantee may be amended without the consent of the Noteholders or the Couponholders to correct a manifest error. In addition, the parties to the Agency Agreement may agree to modify any provision thereof, but the Issuer and the Guarantor shall not agree, without the consent of the Noteholders, to any such modification unless it is of a formal, minor or technical nature, it is made to correct a manifest error or it is, in the opinion of such parties, not materially prejudicial to the interests of the Noteholders. |
(c) In the case of Subordinated Notes issued by Deere Luxembourg, no modification may be made to Condition 4(b)(ii) as they may apply to such Notes without the prior written approval thereto having been obtained from the CSSF. |
18. Further Issues |
The Issuer may from time to time, without the consent of the Noteholders or the Couponholders, create and issue further notes having the same terms and conditions as the Notes in all respects (or in all respects except for the first payment of interest) so as to form a single series with the Notes. |
19. Notices |
Notices to the Noteholders shall be valid if published in a leading English language daily newspaper published in London (which is expected to be the Financial Times ) and, in the case of Notes which are listed on the Luxembourg Stock Exchange and so long as the rules of that exchange so require, a leading newspaper having general circulation in Luxembourg (which is expected to be the Luxemburger Wort ) or in either case, if such publication is not practicable, in a |
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leading English language daily newspaper having general circulation in Europe. Any such notice shall be deemed to have been given on the date of first publication (or if required to be published in more than one newspaper, on the first date on which publication shall have been made in all the required newspapers). Couponholders shall be deemed for all purposes to have notice of the contents of any notice given to the Noteholders. | |
20. Currency Indemnity | |
If any sum due from the Issuer in respect of the Notes or the Coupons or any order or judgment given or made in relation thereto has to be converted from the currency (the " first currency ") in which the same is payable under these Conditions or such order or judgment into another currency (the " second currency ") for the purpose of (a) making or filing a claim or proof against the Issuer, (b) obtaining an order or judgment in any court or other tribunal or (c) enforcing any order or judgment given or made in relation to the Notes, the Issuer shall indemnify each Noteholder, on the written demand of such Noteholder addressed to the Issuer and delivered to the Issuer or to the Specified Office of the Fiscal Agent, against any loss suffered as a result of any discrepancy between (i) the rate of exchange used for such purpose to convert the sum in question from the first currency into the second currency and (ii) the rate or rates of exchange at which such Noteholder may in the ordinary course of business purchase the first currency with the second currency upon receipt of a sum paid to it in satisfaction, in whole or in part, of any such order, judgment, claim or proof. | |
This indemnity constitutes a separate and independent obligation of the Issuer and shall give rise to a separate and independent cause of action. | |
21. Rounding | |
For the purposes of any calculations referred to in these Conditions (unless otherwise specified in these Conditions or the relevant Pricing Supplement), (a) all percentages resulting from such calculations will be rounded, if necessary, to the nearest one hundred-thousandth of a percentage point (with 0.000005 per cent. being rounded up to 0.00001 per cent.), (b) all United States dollar amounts used in or resulting from such calculations will be rounded to the nearest cent (with one half cent being rounded up), (c) all Japanese Yen amounts used in or resulting from such calculations will be rounded downwards to the next lower whole Japanese Yen amount, and (d) all amounts denominated in any other currency used in or resulting from such calculations will be rounded to the nearest two decimal places in such currency, with 0.005 being rounded upwards. | |
22. Redenomination, Renominalisation and Reconventioning | |
(a) Application: | |
This Condition 22 ( Redenomination, Renominalisation and Reconventioning ) is applicable to the Notes only if it is specified in the relevant Pricing Supplement as being applicable. | |
(b) Notice of redenomination: | |
If the country of the Specified Currency becomes or, announces its intention to become, a Participating Member State, the Issuer may, without the consent of the Noteholders and Couponholders, on giving at least 30 days' prior notice to the Noteholders and the Paying Agents, designate a date (the " Redenomination Date "), being an Interest Payment Date under the Notes falling on or after the date on which such country becomes a Participating Member State. | |
(c) Redenomination: | |
Notwithstanding the other provisions of these Conditions, with effect from the Redenomination Date: | |
(i) | the Notes shall be deemed to be redenominated into euro in the denomination of euro 0.01 with a principal amount for each Note equal to the principal amount of that Note in the Specified Currency, converted into euro at the rate for conversion of such currency into euro established by the Council of the European Union pursuant to the Treaty (including |
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compliance with rules relating to rounding in accordance with European Community regulations); provided, however, that , if the Issuer determines, with the agreement of the Fiscal Agent that the then market practice in respect of the redenomination into euro 0.01 of internationally offered securities is different from that specified above, such provisions shall be deemed to be amended so as to comply with such market practice and the Issuer shall promptly notify the Noteholders and Couponholders, each stock exchange (if any) on which the Notes are then listed and the Paying Agents of such deemed amendments; | ||
(ii) | if Notes have been issued in definitive form: | |
(A) | all unmatured Coupons denominated in the Specified Currency (whether or not attached to the Notes) will become void with effect from the date (the "Euro Exchange Date" ) on which the Issuer gives notice (the "Euro Exchange Notice" ) to the Noteholders that replacement Notes and Coupons denominated in euro are available for exchange (provided that such Notes and Coupons are available) and no payments will be made in respect thereof; | |
(B) | the payment obligations contained in all Notes denominated in the Specified Currency will become void on the Euro Exchange Date but all other obligations of the Issuer thereunder (including the obligation to exchange such Notes in accordance with this Condition 22) shall remain in full force and effect; and | |
(C) | new Notes and Coupons denominated in euro will be issued in exchange for Notes and Coupons denominated in the Specified Currency in such manner as the Fiscal Agent may specify and as shall be notified to the Noteholders in the Euro Exchange Notice; and | |
(iii) | all payments in respect of the Notes (other than, unless the Redenomination Date is on or after such date as the Specified Currency ceases to be a sub-division of the euro, payments of interest in respect of periods commencing before the Redenomination Date) will be made solely in euro by cheque drawn on, or by credit or transfer to a euro account (or any other account to which euro may be credited or transferred) maintained by the payee with, a bank in the principal financial centre of any Member State of the European Communities. | |
(d) Interest: | ||
Following redenomination of the Notes pursuant to this Condition 22, where Notes have been issued in definitive form, the amount of interest due in respect of the Notes will be calculated by reference to the aggregate principal amount of the Notes presented (or, as the case may be, in respect of which Coupons are presented) for payment by the relevant holder. | ||
(e) Interest Determination Date: | ||
If the Floating Rate Note Provisions are specified in the relevant Pricing Supplement as being applicable and Screen Rate Determination is specified in the relevant Pricing Supplement as the manner in which the Rate(s) of Interest is/are to be determined, with effect from the Redenomination Date the Interest Determination date shall be deemed to be the second TARGET Settlement Day before the first day of the relevant Interest Period. | ||
23. Governing Law and Jurisdiction | ||
(a) | Governing law: The Notes, each Deed of Guarantee, the Agency Agreement and the Deed of Covenant and all matters arising from or in connection with them are governed by, and shall be construed in accordance with, English law except that (x) in the case of Subordinated Notes issued by Deere, Deere Capital or Deere Luxembourg, the provisions of Condition 4(b)(i) and (ii) and all matters arising from or in connection with them shall be governed by and construed in accordance with the federal laws of the United States of America and the laws of Luxembourg respectively, and (y) in the case of any Guarantee given by Deere Capital of Subordinated Notes issued by Deere Luxembourg the subordination provisions set out in Condition 4(d)(ii) and the JDCC Deed of Guarantee and all matters arising from or in connection with them shall be governed by and construed in accordance with the federal laws of the United States of America. |
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(b) | English courts: Subject as provided below, the courts of England have exclusive jurisdiction to settle any dispute (a " Dispute ") arising from or in connection with the Notes except that in the case of a Subordinated Notes issued by Deere Luxembourg any Dispute arising in relation to Condition 4(b)(ii), as they apply to such Subordinated Notes, shall be subject to the exclusive jurisdiction of the courts of Luxembourg-City. |
(c) | Appropriate forum: Each Issuer and Guarantor agrees that the courts of England (and, in relation to Subordinated Notes issued by Deere Luxembourg, that the courts of Luxembourg-City) are the most appropriate and convenient courts to settle any dispute and, accordingly, that it will not argue to the contrary. |
(d) | Rights of the Noteholders to take proceedings outside England: Condition 23(b) ( English Courts ) is for the benefit of the Noteholders only. As a result, nothing in this Condition 23 ( Governing law and jurisdiction ) prevents any Noteholder from taking proceedings in relation to a Dispute (" Proceedings ") in any other courts with jurisdiction. To the extent allowed by law, Noteholders may take concurrent Proceedings in any number of jurisdictions. |
(e) | Service of process: Each Issuer and Guarantor agrees that the documents which start any Proceedings and any other documents required to be served in relation to those Proceedings may be served on it by being delivered to Clifford Chance Secretaries Limited at its registered office from time to time, being at the date of these Conditions at 200 Aldersgate Street, London EC1A 4JJ. If such Person is not or ceases to be effectively appointed to accept service of process on the Issuer's behalf, the Issuer shall, on the written demand of any Noteholder addressed to the Issuer and delivered to the Issuer or to the Specified Office of the Fiscal Agent, appoint a further Person in England to accept service of process on its behalf and, failing such appointment within 15 days, any Noteholder shall be entitled to appoint such a Person by written notice addressed to the Issuer and delivered to the Issuer or to the Specified Office of the Fiscal Agent. Nothing in this paragraph shall affect the right of any Noteholder to serve process in any other manner permitted by law. This Condition applies to Proceedings in England and to Proceedings elsewhere. |
24. Rights of Third Parties | |
No person shall have any right to enforce any term or condition of the Notes under the Contract (Rights of Third Parties) Act 1999 but this shall not affect any right or remedy of a third party which exists or is available apart from such Act. |
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EXHIBIT 10.5 | ||
AGREEMENT | ||
AGREEMENT dated as of October 15, 1996, by and between Deere & Company, a Delaware corporation ("Deere") and John Deere Capital Corporation, a Delaware corporation ("JDCC"). | ||
WITNESSETH: | ||
WHEREAS, Deere owns all of the outstanding common stock of JDCC; and | ||
WHEREAS, Deere and JDCC believe that it is their respective best interest to demonstrate Deere's support for JDCC to debt holders and derivative counterparties. | ||
NOW, THEREFORE, in consideration of the foregoing, the mutual advantage and benefit of the parties hereto and other good and valuable consideration, the parties hereto hereby agree as follows: | ||
1. | Fixed Charges Ratio . Deere shall make income maintenance payments to JDCC, constituting additions to the pre-tax income of JDCC, to the extent that such payments are necessary to cause the ratio of Net Earnings Available for Fixed Charges to Fixed Charges of JDCC and consolidated affiliates (determined on a consolidated basis and in accordance with GAAP) to be not less than 1.05 for each JDCC fiscal quarter. | |
2. | Ownership . Deere or one or more of its direct or indirect wholly-owned subsidiaries or a combination thereof will continue to own at least fifty-one percent (51%) of the shares of capital stock of JDCC having voting power for the election of directors, provided , however , that JDCC may merge or consolidate with, or sell or convey substantially all of its assets, to Deere, if in connection therewith, Deere shall expressly assume the due and punctual payment of all of JDCC's rated debt. | |
3. | Minimum Net Worth . Deere shall cause JDCC to have as at the end of any fiscal quarter a Consolidated Tangible Net Worth of at least $50,000,000. | |
4. | No Guaranty . This Agreement is not, and nothing herein contained and nothing done pursuant hereto by Deere shall be deemed to constitute, a guaranty by Deere of the payment of any indebtedness, obligation or liability of any kind or character whatsoever of JDCC or any of JDCC's direct or indirect subsidiaries. | |
5. | Term . This Agreement may be modified, amended or terminated, at Deere's election, upon thirty days prior written notice to JDCC and to Moody's Investors Service, Inc. ("Moody's"), Standard & Poors Ratings Group ("S&P") and Fitch Investors Service, Inc. ("Fitch") if (a) such modification, amendment or termination would not result in a downgrade of JDCC's rated public debt ("Debt") by Moody's, S&P or Fitch; or (b) the modification, amendment or notice of termination provides that this Agreement will continue in effect with respect to Debt outstanding on the effective date of the modification, amendment or termination; or (c) JDCC has no |
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outstanding rated public long-term Debt. For purposes hereof, no portion of any Debt shall be considered "outstanding" if such Debt shall be defeased or discharged in accordance with the indenture or other governing instrument defining the rights of the holders of such Debt. Upon termination of this Agreement, no further obligation on the part of Deere shall thereafter arise hereunder. | ||
6. | Defined Terms . Capitalized terms used herein, but not defined herein, shall be as defined in the $3,500,000,000 Credit Agreement dated as of April 5, 1995, amended as of February 27, 1996 and among Deere and JDCC and The Chase Manhattan Bank (formerly Chemical Bank) as Administrative Agent and as Auction Agent, Deutsche Bank AG Chicago Branch as Syndication Agent, Bank of America National Trust and Savings Association as Documentation Agent, and The Toronto-Dominion Bank as Canadian Administrative Agent and various institutions as Managing Agents and co-agents, as such credit agreement or any successor or replacement agreement may be amended from time to time. | |
7. | Waiver . Deere hereby waives any failure or delay on the part of JDCC in asserting or enforcing any of its rights or in making any claims or demands hereunder. | |
8. | Rights of Lenders . The obligations of Deere to JDCC pursuant to this Agreement are to JDCC only and do not run to, and are not enforceable directly by, any creditor of JDCC; nor shall this Agreement cause Deere to be responsible for the payment of any obligation of JDCC to any creditor thereof; provided , however that any Lender to JDCC shall have the right to demand that JDCC enforce JDCC's rights under this Agreement and if JDCC fails or refuses to take timely action to enforce such rights such Lender may proceed against JDCC to enforce JDCC's rights under this Agreement. The term Lender in this paragraph 8 shall mean any person, firm or corporation from whom JDCC is indebted for borrowed money or that is a derivative counterparty to JDCC. | |
9. | Successors . The Agreements herein set forth shall be mutually binding upon, and shall inure to the benefit of, Deere and JDCC and their respective successors and assigns. | |
10. | Governing Law . This Agreement shall be governed by the laws of the State of New York . | |
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed the day and year first above written. |
DEERE & COMPANY | ||
By: | /s/ R. W. Lane | |
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JOHN DEERE CAPITAL CORPORATION | ||
By: | /s/ R. W. Lane | |
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applications, security agreements and other agreements entered into by and between Seller and its dealers or other Obligors otherwise evidencing or governing the obligations of such dealers or other Obligors under the Seller's accounts; | ||
(iv) | all security agreements, financing statements or other instruments which relate to the Collateral. | |
Seller is entitled to exclude, at Seller's discretion, from the Receivables any accounts. Purchaser is entitled to reject any Receivable that could, in Purchaser's opinion, constitute a bad debt. Such exclusion of accounts or rejection of Receivables will only be valid if communicated to the other party latest on the Friday before the end of the John Deere fiscal month in which the sale and purchase of the account or Receivable would occur. | ||
(B) | Credit Risk and Loss . Upon the factoring, the risk of late payment and credit loss on the Receivables shall become Purchaser's. The factoring shall be non-recourse and the Purchaser shall not have the right to sue the Seller in respect of Receivables transferred to it other than in case of breach of this Agreement by the Seller or in case of fraud or manifest dishonesty of the Seller or its agents. | |
(C) | Interest, Charges, Fees . The Purchaser is entitled to all rights to payment of interest, charges and fees on sold Receivables. | |
(D) | Interest on Cash Balances Held by Seller. The Purchaser is entitled to interest on cash collected by the Seller, but not yet paid to the Purchaser. Such interest will be based on the Interest Cost , as defined below in Exhibit 1.2, applied to the daily average balance of cash collected by the Seller during the month. | |
(E) | Transfer of Purchased Assets . The parties agree that the legal transfer of the Purchased Assets shall occur on the last day of the relevant John Deere fiscal month through mutually satisfactory accounting entries. On a periodic basis, the parties will deliver a schedule (the "Notification Schedule") which will summarize, in a form reasonably satisfactory to both Seller and Purchaser, the sales of Receivables which shall have occurred since the date of the last summary. | |
1.2 | Purchase Price. | |
(A) | Purchase Price Calculation . | |
The purchase price for the Purchased Assets will be the principal balance of the Receivables as of the close of business on the last business day of each John Deere fiscal month plus all accrued but unpaid interest, without premium or discount, less the Factoring Discount (being the service fee) as defined in Exhibit 1.2. | ||
(B) | Purchase Price Payment . Purchaser shall pay each purchase price or any other amounts payable under this Agreement in two installments. The first installment will be an estimated payment calculated not later than on the Wednesday before closing of the John Deere fiscal month and settled through the Deere foreign exchange netting process on the |
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Friday before the closing of the John Deere fiscal month. The second installment is the difference between the estimated payment and the actual purchase price and will be calculated on the Wednesday after the closing of the John Deere fiscal month and will be settled through the Deere foreign exchange netting process on the Friday before closing of the succeeding Deere fiscal month. | ||
1.3 | Assumption of Responsibilities by the Parties | |
(A) | Assumption of Liabilities . Purchaser shall not assume any liability, commitment, or obligation of Seller, whether absolute or contingent, known or unknown, of any nature, kind or description whatsoever, arising from or related to the Purchased Assets, including, without limitation, liabilities arising under or related to any contract, agreement or course of dealing between Seller and its lessors, vendors, servicers, consultants, suppliers, brokers or any other party or parties. | |
(B) | Charge Backs, Credit Balances. Any charge backs, presentments, credit balances or incorrectly posted transactions with respect to the Receivables will ultimately be borne by the Seller. The Purchaser will bear all expenses related to credit losses and conduct of litigation against dealers. | |
(C) | Final Authority . Notwithstanding the provisions in Articles 1.3 (A) and (B), the Purchaser shall make all decisions relating to the accounts. | |
1.4 | Post-Sales Adjustments. Following the end of each John Deere fiscal month, Seller shall, with Purchaser's cooperation and assistance, determine and credit or account to Purchaser for any items or transactions that affect any of the Receivables purchased in such month, but that were posted, un-posted or unaccounted for in such month, including without limitation, cash, letters in process relating to cash or other advances, access checks, payments in process, unidentified or unallocated items, or errors. | |
1.5 | Credit Notes and Discounts . | |
(A) | The Seller is irrevocably authorized to issue or grant in good faith to Obligors Credit Notes without limit in amount or time during the lifetime of the Agreement and after the termination date (except where termination results from the Seller's Insolvency). | |
(B) | When sending each Notification Schedule to the Purchaser the Seller shall specify therein in reasonable detail (including where reasonably practicable each relevant purchased Receivable in respect of which there have been issued or granted) those Credit Notes issued or granted prior to the close of business on the last day of the John Deere fiscal month in question. | |
(C) | The Seller shall pay to the Purchaser in cleared funds an amount equal to the Credit Notes so notified except to the extent that it is able to prove to the satisfaction of the Purchaser that the relevant Obligor is unlikely to apply any such Credit Note by way of set-off, credit or other deduction from any purchased Receivable (present or future). The Seller shall make such payment within five business days of sending to the Purchaser the relevant Notification Schedule. | |
(D) | Where a Credit Note is issued or granted after the due date of a purchased Receivable, and where the Seller is due to make payment to the Purchaser in respect of that Credit |
Page 3
Note under Article 1.5 (C), then the Seller shall at the same time as it is due to make such payment pay to the Purchaser in the same manner an amount by way of factoring charge applicable to the relevant purchased Receivable and ending on the due date for payment in accordance with this Article 1.5 (D). | ||
1.6 | True Factoring. The parties intend the transactions described herein to be true factoring and an absolute and irrevocable transfer, sale and assignment of the Purchased Assets from Seller to Purchaser for all purposes. The factoring and the purchase of the Purchased Assets shall not be disclosed to the Obligors. | |
ARTICLE II. SELLER'S REPRESENTATIONS AND WARRANTIES; REMEDIES | ||
2.1 | Representations and Warranties . Seller hereby makes the following representations and warranties to Purchaser on each date on which Receivables are sold by Seller to Purchaser and with respect to the Receivables sold on each such date: | |
(A) | Books and Records Complete . With respect to each Receivable: (i) the Seller's books and records are true and complete in all material respects, and (ii) all material information relating to the credit, charges, fees, payment history, customer inquiries, information about the dealers or other Obligors and regulatory correspondence which is known and available to Seller relating to such Receivables is contained in the books and records. | |
(B) | Enforceability; Ownership . Each Receivable represents the legal, valid and binding obligation of the Obligors thereunder and is enforceable against such Obligors in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, moratorium or other laws or regulations, in effect now or in the future, that affect the enforcement of creditors' rights generally. Seller has full legal title to the Receivables and has not assigned any right, title or interest in such Receivables to any other Person. | |
(C) | Set-off; Defenses . No Account nor such Receivable is the subject of pending or, to the knowledge of Seller, threatened litigation. Seller has administered all accounts in all material respects in accordance with all requirements of applicable law and Seller's Policies and Procedures. | |
(D) | Lien . No Receivable is subject to any lien, interest or right of any person other than Seller, or at the date of the sale and purchase of the relevant Receivable, to any bankruptcy or imminent proceeding, or altered or reduced payment program or imminent alteration or reduction thereof. | |
(E) | Ordinary course of Business . Seller has generated and will generate each Receivable in the ordinary course of its business pursuant to and substantially in accordance with Seller's Policies and Procedures as of the date hereof, or as changed in consultation with the Purchaser. | |
(F) | Servicing of Receivables . All payments or monies received by Seller or its affiliates or third party contractors with respect to the payment of any Receivable have been properly applied. Each Account has been maintained and serviced by Seller in accordance with Seller's Policies and Procedures as well as all requirements of applicable law. |
Page 4
2.2 | Remedies for Breach of Representations and Warranties. All representations and warranties shall survive for three years from the date of sale and purchase of each individual Receivable. Seller shall, in accordance with all applicable laws, indemnify and hold Purchaser, its employees, directors and agents harmless from adverse consequences arising out of any material breach of any representations or warranties of Seller contained herein or Seller's intentional or gross negligent misconduct relating to the performance of Seller's obligations hereunder. Seller's total obligations pursuant to Article III of this Agreement shall, however not exceed the aggregate purchase price for the Receivables. |
ARTICLE III. GENERAL PROVISIONS | |
3.1 | Severability . If any term or condition of this Agreement should be held invalid by a court, arbitrator or tribunal of competent jurisdiction in any respect such invalidity shall not affect the validity of any other term or condition hereof. If any term or condition of this Agreement should be held to be unreasonable as to time, scope or otherwise by such a court, arbitrator or tribunal, it shall be construed by limiting or reducing it to a minimum extent so as to be enforceable under then applicable law. The parties hereto acknowledge that they would have executed this Agreement with any such invalid term or condition excluded or with any such unreasonable term or condition so limited or reduced. |
3.2 | Entire Agreement; Amendments . This Agreement and its exhibits and the agreements it incorporates by reference constitute the entire agreement of the parties with regard to the specific subject matter hereof and supersede all prior written and/or oral understandings between the parties. This Agreement may not be amended except pursuant to a writing signed by both parties. |
3.3 | No Third Party Beneficiaries . This Agreement is for the sole and exclusive benefit of the parties hereto. Nothing in this Agreement shall be construed to grant to any person other than the parties hereto, and their respective successors and permitted assigns, any right, remedy or claim under or in respect of this Agreement or any provision hereof. |
3.4 | Applicable Law; Place of Jurisdiction. This agreement shall be governed by and construed in accordance with the laws of Germany. Any dispute which cannot be resolved amicably between the parties with regard to the interpretation, meaning, effect or application of this Agreement shall be submitted to the competent court in Mannheim, Germany. |
Page 5
IN WITNESS WHEREOF , the parties have duly executed and delivered this Factoring Agreement as of the day and year first above written.
JOHN DEERE FINANCE S.A. | JOHN DEERE VETRIEB |
By: | By: |
Name: Stephen Pullin Title: Director |
Name: Markwart von Pentz Title: General Manager |
By: | By: |
Name: Thomas Annis Title: General Manager |
Name: Nils Jäger Title: Manager, Finance and Accounting |
Page 6
EXHIBIT 1.2 | Purchase Price Calculation -Factoring Discount | |
This Exhibit 1.2 describes the formulae for calculating the Factoring Discount on the sale and purchase of trade receivables by Seller to Purchaser. | ||
(i) On initial purchase | ||
The Factoring Discount for the initial purchase will reflect the Credit Risk composed by both the Average Annual Loss and the Average Annual Costs of Late Payment experienced by the Seller during a period of 10 years prior to the date of sale. It covers the credit risk for the period between inception and purchase of the portfolio, assuming that the payment term of the population of purchased receivables has elapsed by 50%, on average. | ||
The factor will be calculated as follows: | ||
D=r cr *portfolio | ||
with: | ||
r
cr
=
(avg.loss + avg.late)
* 100
avg.receiv * turns * 2 |
+ 2 s |
Definitions:
Page 1 of 16
2. | Associated Rights |
Upon a Receivable vesting in the Purchaser under Clause 1 there shall also automatically be assigned to and vest in the Purchaser all the Associated Rights relating thereto. | |
3. | Formal Assignment |
3.1 | The Seller shall at the request of the Purchaser and at the Seller's expense execute a formal written assignment in a form reasonably specified by the Purchaser in favour of the Purchaser in respect of all or any Purchased Receivables and/or Associated Rights. If any Purchased Receivable and/or Associated Right shall fail to vest effectively in the Purchaser in equity, the Seller shall hold such Purchased Receivable and/or Associated Right in trust for the Purchaser. |
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3.2 | The Seller agrees to pay, reimburse or indemnify the Purchaser on demand against any stamp duty, and any penalties and interest arising in relation thereto, payable in respect of the transfer of Receivables to the Purchaser. |
4. | Ownership of Goods |
The Seller shall promptly notify the Purchaser as to any goods relating to a Purchased Receivable which are returned to or repossessed by the Seller. Within five business days of receipt of such notice the Purchaser shall be entitled to require the transfer to it of any right, title, property or interest of the Seller in or to all or any of those goods. Where the Purchaser requires such transfer the Seller shall deal with the relevant goods in such manner as the Purchaser may reasonably instruct and the Seller shall hold the relevant right, title, property and/or interest in or to such goods in trust for the Purchaser. | |
5. | Purchase Price |
5.1 | The purchase price of each Receivable together with its Associated Rights and any right, title, property and/or interest in or to any goods relating to that Receivable which are transferred to the Purchaser under Clause 4 shall be the net amount (including any VAT or other tax or duty) payable by the relevant Debtor in respect of such Receivable as specified in the relevant Notification Schedule less, in the case of Receivables sold on the Commencement Date, the Doubtful Account Reserve applicable to those Receivables. |
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5.2 | The Doubtful Account Reserve shall be the product D calculated in accordance with the formula set out in Part 1 of the Schedule and applied to the relevant amount. |
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5.3 | The purchase price of all Receivables shall be payable in sterling or, where the Receivable is payable in Euro and the parties so agree, in Euro. Where a Receivable is payable or paid otherwise than in sterling the purchase price shall be computed by reference to the rate of exchange ruling in London on the Factoring Charge End Date, but for administrative convenience and for the purpose of calculating the amount |
Page 2 of 16
payable by the Purchaser in accordance with clause 5.4 the Purchaser shall provisionally apply the rate ruling in London on the nearest practicable date prior to that on which that Receivable is first taken into account in the preparation of any estimate under Clause 5.5 or, if later, the relevant Notification Schedule, making such adjustments as may thereafter be necessary. For this purpose the Factoring Charge End Date shall be the date determined in accordance with Clause 6.1 on which the Factoring Charge ceases to be payable in respect of that Receivable. | ||
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5.4 | The Purchaser shall pay to the Seller in cleared funds by electronic transfer to such bank account as the Seller may notify from time to time (or by such other means as the parties may from time to time agree) sums becoming due and payable by the Purchaser to the Seller under this Agreement. | |
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5.5 | The Seller shall use its reasonable endeavours to send to the Purchaser on or before the close of business on the last Tuesday in each Period, or failing which as soon as possible thereafter, notice by electronic means only setting out its best estimate of the following: | |
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(a) | the aggregate purchase price for Receivables sold or to be sold to the Purchaser during that Period; | |
(b) | any amount applicable to those Receivables and arising under Clause 5.3; and | |
(c) | the aggregate amount of Credit Notes issued or granted or to be issued or granted by the Seller during that Period and in respect of which the Seller is likely to be obliged to make payment under Clause 9.3. | |
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Such notice shall also specify the applicable Previous Period Adjustment Amount (being the Adjustment Amount calculated under Clause 5.7 for the immediately preceding Period). | ||
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5.6 | The relevant party shall use its reasonable endeavours to pay to the other on or before the close of business on the last day of the relevant Period, or failing which it shall pay as soon as possible thereafter, the applicable net amount based on the estimates prepared for that Period under Clause 5.5 and taking into account the applicable Previous Period Adjustment Amount. | |
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5.7 | When sending a Notification Schedule to the Purchaser in respect of any Period the Seller shall specify the applicable Adjustment Amount (being the net difference between the estimated amounts for that Period made under Clause 5.5 and the corresponding amounts as included in that Notification Schedule). | |
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5.8 | The Purchaser shall not assume any liability, commitment or obligation of the Seller to any Debtor or any other third party, whether absolute or contingent, known or unknown, present or future, of any nature, kind or description whatsoever arising from, relating to or in connection with any contract for the sale or supply of goods or the provision of services by the Seller and from which a Purchased Receivable arises, or is alleged to arise. |
Page 3 of 16
6 | Factoring Charge | |
6.1 | The Seller will pay to the Purchaser a charge (the "Factoring Charge") on the balance outstanding from time to time of any Purchased Receivable (that balance being determined as envisaged in Clause 11.3) commencing on the day the Purchaser pays the purchase price for that Purchased Receivable or an amount on account thereof as envisaged in Clause 5.6 or is credited with having done so and until the earliest of the following: | |
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(a) | the end of the Period next following the Period in which the Due Date of that Purchased Receivable falls; and | |
(b) | the outstanding balance of that Purchased Receivable being recognised as a bad or doubtful debt. | |
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6.2 | The Factoring Charge shall be the product D calculated in accordance with the formula set out in part 2 of the Schedule and shall be calculated daily on such outstanding balance. | |
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6.3 | The Seller shall pay to the Purchaser in cleared funds by electronic transfer to the Factoring Account or, pending the opening of the Factoring Account, to such other account as the Purchaser may from time to time direct (or by such other means as the parties may from time to time agree) the aggregate amount of the Factoring Charges which have accrued in respect of each Period. The Seller shall use its reasonable endeavours to make such payment on or before the close of business on the last day of the next following Period, or failing which as soon as possible thereafter. | |
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6.4 | The Purchaser shall be entitled: | |
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(a) | after having consulted with the Seller and on giving not less than 60 days written notice prior to each 31 st October during the lifetime of this Agreement and so as to take effect on the next following 1 st November, to add to, delete, increase, reduce or otherwise vary or alter in any respect all or any part of the formula used for calculating the Factoring Charge and/or the amount or percentage of any of the variables to be used in the operation of any such formula: and | |
(b) | at any time and from time to time by giving written notice on or before the end of any Period and so as to take effect at the commencement of the next following Period to increase, reduce or otherwise vary or alter the variable in respect of the Monthly Average Interest Rate. | |
7 | Credit Risk | |
Subject to Clause 1.4, it is agreed and acknowledged between the parties that the credit risk in relation to any Receivable passes immediately to the Purchaser upon it vesting in the Purchaser. |
Page 4 of 16
Page 5 of 16
Page 6 of 16
Seller makes fair and reasonable disclosure of any relevant matter in writing to the Purchaser) as follows: | ||
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(a) | the Seller is the legal and beneficial owner of the Receivables included in that Notification Schedule; | |
(b) | there is no mortgage, charge, lien, trust or other encumbrance or security rights or any tracing or other equitable right which affects those Receivables; | |
(c) | the goods to which each of those Receivables relates have been despatched to or to the order of the relevant Debtor or have been collected by it or on its behalf and/or, in the case of services, have been completely performed; | |
(d) | no reservation of title in favour of any third party applies to any of the goods sold or supplied by the Seller and to which each of those Receivables relates; | |
(e) | each relevant Debtor has no right of set-off or counterclaim that will reduce or extinguish the amount of any of those Receivables or adversely affect the collection thereof (except as a result of the issue or grant of any Credit Note as envisaged and in accordance with Clause 9); | |
(f) | each such Receivable is an existing, enforceable and undisputed obligation of the relevant Debtor; | |
(g) | each such Receivable is subject to the Seller's standard terms and conditions of sale in force from time to time and which have been approved by the Purchaser; | |
(h) | the Seller's books and records relating to those Receivables are true and complete in all material respects and contain all material information relating to the creditworthiness and payment history of each relevant Debtor; | |
(i) | each such Receivable has arisen in the ordinary course of the Seller's business and substantially in accordance with the Seller's normal policies and procedures applicable to ordinary transactions with the relevant Debtor. | |
13 | Undertakings | |
The Seller undertakes to the Purchaser that at all times until the Termination Date it shall: | ||
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(a) | not, unless the Purchaser shall have given its prior written consent, create or permit to exist any mortgage, charge, lien, trust or other encumbrance or security on any material part of the Seller's property, assets or undertaking; | |
(b) | ensure that the making and performance of this Agreement by the Seller does not contravene any law, regulation or statute and does not constitute a breach of or event of default under any agreement binding on the Seller; | |
(c) | take all reasonable care with a view to ensuring that all statements and information (including the Notification Schedules) provided by the Seller to the |
Page 7 of 16
Page 8 of 16
Page 9 of 16
Page 10 of 16
"Factoring Charge" has the meaning ascribed thereto in Clause 6.1 and includes any charge arising under Clause 9.5; | ||
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"Insolvent" means in respect of a person, that there has been taken by a court or by any person in respect of that person any of the steps set out below (or some other similar step under any law other than English law): | ||
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(a) | a bankruptcy order has been made; | |
(b) | a composition or a scheme of arrangement has been approved by the court; | |
(c) | an assignment, composition or other arrangement has been made for the benefit of creditors generally; | |
(d) | an order had been made by the court for winding-up or administration; | |
(e) | a resolution has been passed for voluntary winding-up; | |
(f) | a compromise or arrangement has been made binding on that person and all its creditors; or | |
(g) | an administrative receiver or a receiver on behalf of debenture holders or other creditors has been appointed; | |
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"Notification Schedule" means a notice sent by electronic means only by the Seller to the Purchaser pursuant to Clause 1.3 which shall be in a form specified by the Purchaser from time to time; | ||
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"Period" means a John Deere fiscal month as established from time to time by Deere and Company; | ||
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"Potentially Insolvent" means, in respect of a person, that any petition or any other originating process has been presented or any demand or notice has been issued or any other step has been taken under a legal procedure which could result in that person becoming Insolvent; | ||
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"Purchased Receivable" means any Receivable but excluding, with effect from the date of any resale, any Receivable which is resold by the Purchaser to the Seller in accordance with Clause 1.4; | ||
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"Receivable" means any debt (including, where the context permits any part of a debt and any tax, duty or interest on that debt) arising from a contract for the sale or supply of goods or the provision of services by the Seller where the goods the subject of that contract have been despatched to or to the order of the relevant debtor or collected by it or on its behalf and/or the services the subject of that contract have been completely performed by the Seller; | ||
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"sterling" means the lawful currency of the United Kingdom from time to time; | ||
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"Termination Date" means the date of termination of this Agreement pursuant to a notice given in accordance with Clause 16; |
Page 11 of 16
Page 12 of 16
IN WITNESS WHEREOF, the parties have duly executed and delivered this Agreement as of the day and year first above written. |
JOHN DEERE FINANCE S.A.
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JOHN DEERE LIMITED |
By: |
By:
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Name: Stephen Pullin
Title: Director |
Name: Clay T. Sherrill
Title: General Manager |
By: |
By:
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Name: Thomas Annis
Title: General Manager |
Name: Malcolm Jackson
Title: Manager, Finance and Administration |
Page 13 of 16
Page 14 of 16
Definitions:
Page 15 of 16
Intentionally Left Blank.
Page 16 of 16
Year Ended October 31
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2002
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2001
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2000
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1999
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1998
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||||||||||||
Earnings:
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||||||||||||||||
Income of consolidated group before income taxes and changes in accounting
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$
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602,705
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$
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(24,757
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)
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$
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777,507
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$
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365,135
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$
|
1,560,032
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|||||
Dividends received from less than fifty percent owned affiliates
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2,236
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1,675
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3,065
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5,734
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5,555
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|||||
Fixed charges excluding capitalized interest
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659,263
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787,737
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693,626
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|
571,949
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|
531,817
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|||||
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||||||
Total earnings
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$
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1,264,204
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$
|
764,655
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$
|
1,474,198
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$
|
942,818
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$
|
2,097,404
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|||||
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|
||||||
Fixed charges:
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Interest expense of consolidated group including capitalized interest
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$
|
637,571
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$
|
766,254
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|
$
|
677,424
|
$
|
557,740
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$
|
521,418
|
|||||
Portion of rental charges deemed to be interest
|
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22,145
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|
22,030
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|
|
17,122
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|
15,347
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|
12,451
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|||||
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|
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|
||||||
Total fixed charges
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$
|
659,716
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$
|
788,284
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|
$
|
694,546
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$
|
573,087
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$
|
533,869
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|||||
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|
||||||
Ratio of earnings to fixed charges*
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1.92
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**
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|
2.12
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|
1.65
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|
3.93
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The computation of the ratio of earnings to fixed charges is based on applicable amounts of the Company and its consolidated subsidiaries plus dividends
received from less than fifty percent owned affiliates. Earnings consist of income before income taxes, changes in accounting and fixed charges excluding capitalized interest. Fixed charges consist of interest on
indebtedness, amortization of debt discount and expense, an estimated amount of rental expense which is deemed to be representative of the interest factor, and capitalized interest.
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*
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The Company has not issued preferred stock. Therefore, the ratios of earnings to combined fixed charges and preferred stock dividends are the same as the ratios
presented above.
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**
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For the year ended October 31, 2001, earnings available for fixed charges coverage were $24 million less than the amount required for a ratio of earnings to
fixed charges of 1.0.
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EXHIBIT 99 |
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STATEMENT PURSUANT TO
18 U.S.C. SECTION 1350 AS REQUIRED BY SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 |
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In connection with the Annual Report of Deere & Company (the "Company") on Form 10-K for the period ending October 31, 2002, as filed with the Securities and Exchange Commission on the date hereof (the "Report"), the undersigned hereby certify that to the best of our knowledge: | |
1. | The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities and Exchange Act of 1934; and |
2. | The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. |
December 19, 2002 |
/s/ R. W. Lane | Chairman and Chief Executive Officer | ||
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December 19, 2002 | /s/ Nathan J. Jones | Senior Vice President and Chief Financial Officer | ||
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