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As
filed with the Securities and Exchange Commission
on June 5, 2009
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Registration
No. 333-157578
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SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
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FORM
S-3
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Amendment
No. 2
to
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
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HNI Corporation
Co-registrants
are listed on the page following the cover pages
(Exact
Name of Registrant as Specified in Its Charter)
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Iowa
(State
or Other Jurisdiction
of
Incorporation
or Organization)
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42-0617510
(I.R.S.
Employer
Identification
Number)
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408
East Second Street
P.O.
Box 1109
Muscatine,
IA 52761-0071
563/272-7400
(Address,
including Zip Code, and Telephone Number, including Area Code of
Registrant's Principal Executive Offices)
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Steven
M. Bradford
Vice
President, General Counsel and Secretary
HNI
Corporation
408
East Second Street
P.O.
Box 1109
Muscatine,
IA 52761
563/272-7400
(Name,
Address, including Zip Code and Telephone Number, including Area Code, of
Agent For Service)
Copy
to:
Joseph
P. Richardson, Esq.
Matthew
M. Holman, Esq.
Squire,
Sanders & Dempsey L.L.P.
Two
Renaissance Square
40
North Central Avenue
Phoenix,
AZ 85004-4498
603/528-4000
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Approximate date of commencement of proposed sale to public: From time to time after the effective date of this Registration Statement.
If the
only securities being registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following
box. o
If any of
the securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other
than securities offered only in connection with dividend or reinvestment plans,
please check the following box. þ
If this
Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the
Securities Act registration number of the earlier effective registration
statement for the same offering. o __________________________
If this
Form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
number of the earlier effective registration statement for the same
offering. o ______________
If this
Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. o
If this
Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check
the following box. o
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of "large accelerated filer,"
"accelerated filer" and "smaller reporting company" in Rule 12B-2 of the
Exchange Act.
Large
Accelerated Filer þ Accelerated
Filer o Non-accelerated
Filer o Smaller
Reporting Company o
(Do
not check if a smaller reporting company)
CALCULATION
OF REGISTRATION FEE
|
Title
of each class of
securities to be registered (1)
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Amount
to be
registered (1)(2)
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Proposed
maximum
offering price per share (2)(3)
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Proposed
maximum
aggregate
offering price (2)(3)
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Amount
of
registration fee (2)(4)
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Common
Stock, par value $1.00 per share
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Preferred
Stock, par value $1.00 per share
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Debt
Securities
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| Guarantees of HNI Corporation and its subsidiaries with respect to the Debt Securities (5) | ||||
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Depositary
Shares
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Warrants
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Purchase
Contracts
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Units
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Total:
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---
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--- |
$250,000,000
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$9,825*
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(1)
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There
are being registered under this registration statement such indeterminate
number of shares of common stock and preferred stock; such indeterminate
principal amount of debt securities; such indeterminate number of
depositary shares; such indeterminate number of warrants to purchase
common stock, preferred stock, debt securities and/or depositary shares;
such indeterminate number of purchase contacts to purchase common stock,
preferred stock, debt securities, depositary shares or warrants; and such
indeterminate number of units as may be sold by the registrant from time
to time, which together shall have an aggregate initial offering price not
to exceed $250,000,000. If any debt securities are issued at an
original issue discount, then the offering price of such debt securities
shall be in such greater principal amount at maturity as shall result in
an aggregate initial offering price not to exceed $250,000,000, less the
aggregate dollar amount of all securities previously issued
hereunder. Any securities registered hereunder may be sold
separately or as units with other securities registered
hereunder. The securities registered hereunder also include
such indeterminate number of shares of common stock and preferred stock,
depositary shares, amount of debt securities and warrants as may be issued
upon conversion of or exchange for preferred stock, debt securities or
depositary shares that provide for conversion or exchange; upon exercise
of purchase contracts or warrants; or pursuant to the anti-dilution
provisions of any such securities. In addition, pursuant to
Rule 416 under the Securities Act of 1933, the shares being registered
hereunder
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include
such indeterminate number of shares of common stock and preferred stock as
may be issuable with respect to the shares being registered hereunder as a
result of stock splits, stock dividends or similar
transactions.
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(2)
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In
United States dollars or the equivalent thereof in any other currency,
currency unit or units or composite currency or
currencies.
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(3)
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The
proposed maximum per unit and aggregate offering prices per class of
securities will be determined from time to time by the registrant in
connection with the issuance by the registrant of the securities
registered under this registration statement and is not specified as to
each class of security pursuant to General Instruction II.D of Form S-3
under the Securities Act of 1933.
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(4)
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Calculated
pursuant to Rule 457(o) under the Securities Act of 1933.
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The
guarantees are the full and unconditional guarantee of HNI Coproration's
obligations under its debt securities by its subsidiaries listed on the
following page. No separate consideration will be received for the
guarantees of debt securities. No additional registration fee for
the guarantees will be due pursuant to Rule 457(n) under the Securities
Act of 1933.
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*
Previously
paid.
The
registrant hereby amends this registration statement on such date or dates as
may be necessary to delay its effective date until the registrant shall file a
further amendment which specifically states that this registration statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
TABLE
OF CO-REGISTRANTS
The
following direct and indirect subsidiaries of HNI Corporation are co-registrants
for the purpose of providing guarantees, if any, of payment on the debt
securities being registered hereunder:
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Name
(1)
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State
of Incorporation or Organization
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I.R.S.
Employer Identification No.
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Allsteel
Inc.
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Illinois
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36-0717079
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Hearth
& Home Technologies Inc.
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Iowa
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42-1161782
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Hickory
Business Furniture, LLC
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North
Carolina
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74-3255576
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Maxon
Furniture Inc.
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Iowa
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42-1295118
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Paoli
Inc.
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Iowa
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20-0473460
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The
Gunlocke Company L.L.C.
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Iowa
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22-3887942
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The
HON Company
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Iowa
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42-1491474
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(1) The
address, including zip code, and telephone number, including area code, of each
co-registrant is c/o HNI Corporation, 408 East Second Street, P.O. Box 1109,
Muscatine, IA 52761-0071, (563) 272-7400.
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The
information in this prospectus is not complete and may be changed.
We may not sell these securities until the registration statement filed
with the Securities and Exchange Commission is effective. This
prospectus is not an offer to sell these securities and it is not
soliciting an offer to buy these securities in any state where the offer
or sale is not permitted.
|
SUBJECT
TO COMPLETION, DATED JUNE 5, 2009
PROSPECTUS
HNI Corporation
$250,000,000
Common
Stock
Preferred
Stock
Debt
Securities
Guarantees
Depositary
Shares
Warrants
Purchase
Contracts
Units
We may
offer and sell from time to time, in one or more series or issuances and on
terms that we will determine at the time of the offering, any combination of the
securities described in this prospectus, up to an aggregate amount of
$250,000,000.
We will
provide specific terms of any offering in a supplement to this
prospectus. Any prospectus supplement may also add, update or change
information contained in this prospectus. You should carefully read
this prospectus and the applicable prospectus supplement as well as the
documents incorporated or deemed to be incorporated by reference in this
prospectus before you purchase any of the securities offered
hereby.
These
securities may be offered and sold in the same offering or in separate
offerings; to or through underwriters, dealers and agents; or directly to
purchasers. The names of any underwriters, dealers or agents involved
in the sale of our securities and their compensation will be described in the
applicable prospectus supplement.
Our
common stock is listed on the New York Stock Exchange ("NYSE") under the symbol
"HNI." We will make application to list any shares of common stock
sold by us under this prospectus and any prospectus supplement on the
NYSE. We will provide information in any applicable prospectus
supplement regarding any listing of securities other than shares of our common
stock on any securities exchange.
This
prospectus may not be used to consummate a sale of our securities unless
accompanied by the applicable prospectus supplement.
You
should consider the risks that we have described in this prospectus and in
the accompanying
prospectus supplement before you invest. See "RISK FACTORS" on page
2.
Neither the Securities and Exchange
Commission nor any state securities commission has approved or disapproved of these
securities or passed upon the adequacy or accuracy of this prospectus. Any
representation to the contrary is a criminal offense.
The date
of this prospectus is _____________ ___, ______.
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| Exhibit 3.1 | |
| Exhibit 3.2 | |
| Exhibit 3.3 | |
| Exhibit 3.4 | |
| Exhibit 3.5 | |
| Exhibit 3.6 | |
| Exhibit 3.7 | |
| Exhibit 3.8 | |
| Exhibit 3.10 | |
| Exhibit 3.11 | |
| Exhibit 3.12 | |
| Exhibit 3.13 | |
| Exhibit 3.14 | |
| Exhibit 5.1 | |
| Exhibit 23.2 |
This
prospectus is part of a registration statement that we filed with the Securities
and Exchange Commission, or the SEC, utilizing a "shelf" registration
process. Under this shelf registration process, we may sell any
combination of the securities registered in one or more offerings, up to a total
dollar amount of $250,000,000. This prospectus provides you with
general information. We will provide a prospectus supplement that
contains specific information about any offering by us.
The
prospectus supplement also may add, update or change information contained in
the prospectus. You should read both this prospectus and the
prospectus supplement related to any offering as well as additional information
described under the heading "WHERE YOU CAN FIND MORE INFORMATION."
We have not
authorized anyone to provide you with information different from that contained
or incorporated by reference in this prospectus or any accompanying prospectus
supplement or any "free writing prospectus." We are offering to sell,
and seeking offers to buy, securities only in jurisdictions in which offers and
sales are permitted. The information contained in this prospectus and
in any accompanying prospectus supplement is accurate only as of the date of
their covers, regardless of the time of delivery of this prospectus or any
prospectus supplement or of any sale of our securities. Our business,
financial condition, results of operations and prospects may have changed since
those dates. You should rely only on the information contained or
incorporated by reference in this prospectus or any accompanying prospectus
supplement. To the extent there is a conflict between the information
contained in this prospectus and the prospectus supplement, you should rely on
the information in the prospectus supplement, provided that if any statement in
one of these documents is inconsistent with a statement in another document
having a later date – for example, a document incorporated by reference into
this prospectus or any prospectus supplement – the statement in the document
having the later date modifies or supersedes the earlier statement.
In this
prospectus, the terms "we," "our," "us," "HNI" and the "Corporation" refer to
HNI Corporation, unless otherwise specified.
The following
summary does not contain all of the information that may be important to
purchasers of our securities. Prospective purchasers of securities should
carefully review the detailed information and financial statements, including
the notes thereto, appearing elsewhere in or incorporated by reference into this
prospectus.
Our
Company
We are an
Iowa corporation, incorporated in 1944, and are the second largest office
furniture manufacturer in the world and the nation's leading manufacturer and
marketer of gas and wood-burning fireplaces. We provide a broad
office furniture product offering to dealers (both independent and
Corporation-owned), wholesalers, retail superstores, end-user customers and
federal, state and local governments. Dealer, wholesaler and retail
superstores are the major office furniture product distribution channels based
on sales. Our hearth products include a full array of gas, electric
and wood-burning fireplaces, inserts, stoves, facings and
accessories. We sell these products through a national system of
dealers and distributors, as well as Corporation-owned distribution and retail
outlets. We are organized into a corporate headquarters and operating
units with offices, manufacturing plants, distribution centers and sales
showrooms in the United States, Canada, China, Hong Kong and
Taiwan. We have eight operating units, marketing under various brand
names, including HON®,
Allsteel®, Gunlocke®, Paoli®, Maxon®, HBF® and Lamex®, that participate in the
office furniture industry. These operating units
include: The HON Company, Allsteel Inc., Maxon Furniture Inc., The
Gunlocke Company L.L.C., Paoli Inc., Hickory Business Furniture, LLC, HNI Hong
Kong Limited (Lamex) and Omni Workspace Company. Each of these
operating units provides products, or in the case of Omni Workspace Company
services, which are sold through various channels of distribution and
segments of the office furniture industry. Our operating unit Hearth
& Home Technologies Inc. participates in the hearth products industry
manufacturing and distributing such brands as Heatilator®, Heat
& Glo™,
Quadra-Fire® and Harman
Stove™. The
retail and distribution brand for this operating unit is Fireside Hearth &
Home. In fiscal 2008, we had net sales of $2.5 billion, of which
approximately $2.1 billion or 83% was attributable to office furniture products
and $0.4 billion or 17% was attributable to hearth products.
Our
Growth Strategy
Our strategy
is to build on our position as a leading manufacturer of office furniture and
hearth products in North America and pursue select global markets where
opportunities exist to create value. The key components of this
strategy are to:
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introduce
new products;
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·
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build
brand equity;
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·
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provide
outstanding customer satisfaction by focusing on the
end-user;
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·
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strengthen
the distribution network;
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·
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respond
to global competition;
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·
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pursue
complementary strategic
acquisitions;
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·
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enter
markets not currently served; and
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·
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continually
reduce costs.
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Our strategy
has a dual focus: working continuously to extract new growth from our
core markets while identifying and developing new, adjacent potential areas of
growth. We focus on extracting new growth from each of our existing
businesses by deepening our understanding of end-users, using new insights
gained to refine branding, selling and marketing and developing new products to
serve them better. We also pursue opportunities in potential growth
drivers outside of, but related to, our core business, such as vertical markets,
new distribution models or a new business entirely.
Our
Offices
We maintain
our principal executive offices at 408 East Second Street, P.O. Box 1109,
Muscatine, Iowa 52761. Our telephone number is 563/272-7400.
Our website is located at www.hnicorp.com. Other than as described
in "WHERE YOU CAN FIND MORE INFORMATION" below, the information on, or that can
be accessed through, our web site is not incorporated by reference in this
prospectus or any prospectus supplement, and you should not consider it to be a
part of this prospectus or any prospectus supplement. Our web site address
is included as an inactive textual reference only.
Investing in
our securities involves a high degree of risk. Please see the risk factors
described under the caption "ITEM 1A. RISK FACTORS" in our Annual
Report on Form 10-K for the fiscal year ended January 3, 2009, on file with
the SEC, which are incorporated by reference in this prospectus and in any
accompanying prospectus supplement. Before making an investment decision,
you should carefully consider these risks as well as information we include or
incorporate by reference in this prospectus and in any accompanying prospectus
supplement.
We file
annual, quarterly and current reports, proxy statements and other information
with the SEC under the Securities Exchange Act of 1934, as amended, or the
Exchange Act. Through our website at www.hnicorp.com, you may access, free of
charge, our filings, as soon as reasonably practical after we electronically
file them with or furnish them to the SEC. Other information contained in our
website is not incorporated by reference in, and should not be considered a part
of, this prospectus or any accompanying prospectus supplement. You also
may read and copy any document we file at the SEC's Public Reference Room at
100 F Street, N.E.,
Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330 for further information on the Public Reference Room. Our
SEC filings are also available to the public from the SEC's website at www.sec.gov.
This
prospectus is part of a registration statement on Form S-3 that we and our
guarantor subsidiaries jointly filed with the SEC to register the securities
offered hereby under the Securities Act of 1933, as amended, or the Securities
Act. This prospectus does not contain all of the information included in
the registration statement,
including certain exhibits
and schedules. You may obtain the registration statement and exhibits
to the registration statement from the SEC at the address listed above or from
the SEC's website – www.sec.gov.
This
prospectus and each prospectus supplement include and incorporate
forward-looking statements within the meaning of Section 27A of the
Securities Act and Section 21E of the Exchange Act. All
statements, other than statements of historical facts, included or incorporated
in this prospectus or any prospectus supplement regarding our strategy,
prospects, plans, objectives, future operations, future revenue and earnings,
projected margins and expenses, technological innovations, future products or
product development, product development strategies, potential acquisitions or
strategic alliances, the success of particular product or marketing programs,
the amount of revenue generated as a result of sales to significant customers,
financial position, and liquidity and anticipated cash needs and availability
are forward-looking statements. The words "anticipates," "believes,"
"could," "confident," "estimates," "expects," "forecasts,"
"hopes," "intends," "likely," "may," "plans," "possible,"
"potential," "predicts," "projects," "should," "will," "would" and
variations of such words and similar expressions are intended to identify
forward-looking statements.
Actual
results or events could differ materially from the forward-looking statements we
make. Among the factors that could cause actual results to differ
materially are the factors discussed under "ITEM 1A. RISK FACTORS" in
our Annual Report on Form 10-K for the fiscal year ended January 3, 2009.
We also will include or incorporate by reference in each prospectus
supplement important factors that we believe could cause actual results or
events to differ materially from the forward-looking statements that we make.
Should one or more known or unknown risks or uncertainties materialize, or
should underlying assumptions prove inaccurate, actual results could differ
materially from past results and those anticipated, estimated, projected or
implied by these forward-looking statements. You should consider these
factors and the other cautionary statements made in this prospectus, any
prospectus supplement or the documents we incorporate by reference in this
prospectus as being applicable to all related forward-looking statements
wherever they appear in this prospectus, any prospectus supplement or the
documents incorporated by reference. While we may elect to update
forward-looking statements wherever they appear in this prospectus, any
prospectus supplement or the documents incorporated by reference, we do not
assume, and specifically disclaim, any obligation to do so, whether as a result
of new information, future events or otherwise. Our forward-looking
statements do not reflect the potential impact of any future acquisitions,
mergers, dispositions, joint ventures or investments we may make.
The SEC
allows us to incorporate by reference the information we file with the SEC,
which means that we can disclose important information to you by referring you
to those documents. The information that we incorporate by reference is
considered to be part of this prospectus. Information that we file with
the SEC in the future and incorporate by reference in this prospectus
automatically updates and supersedes previously filed information as
applicable.
We
incorporate by reference into this prospectus the following documents filed by
us with the SEC, other than any portion of any such documents that are not
deemed "filed" under the Exchange Act in accordance with the Exchange Act and
applicable SEC rules:
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·
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Annual
Report on Form 10-K for the fiscal year ended January 3,
2009.
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·
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Current
Report on Form 8-K filed with the SEC on February 17,
2009.
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·
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Current
Report on Form 8-K filed with the SEC on February 25,
2009.
|
| · |
Current
Report on Form 8-K filed with the SEC on April 3, 2009.
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·
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Information
contained in Item 2.05 of Current Report on Form 8-K filed with the SEC on
April 22, 2009.
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| · |
Quarterly
Report on Form 10-Q for the fiscal quarter ended April 4,
2009.
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·
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Current Report on Form 8-K filed with the SEC on May
15, 2009.
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·
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The
information specifically incorporated by reference into our Annual Report
on Form 10-K for the fiscal year ended January 3, 2009, from our
definitive proxy statement on Schedule 14A filed with the SEC on
March 30, 2009.
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·
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The
description of our common stock contained in the Registration Statement on
Form 8-A filed with the SEC on July 12, 1998, including any
amendments or reports filed for the purpose of updating such
description.
|
We also incorporate
by reference into this prospectus all documents (other than any portions of any
such documents that are not deemed "filed" under the Exchange Act in accordance
with the Exchange Act and applicable SEC rules) filed by us under
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of
the initial registration statement and before effectiveness of the registration
statement, and after the date of this prospectus.
You may
request a copy of these filings, which we shall deliver to you, together with
all exhibits thereto, at no cost, by writing or telephoning us as
follows:
HNI
Corporation
Attention:
Corporate Secretary
408 East
Second Street
P.O. Box
1109
Muscatine,
Iowa 52761
563/272-7400
Any statement
contained in a document that is incorporated by reference will be modified or
superseded for all purposes to the extent that a statement contained in this
prospectus or any accompanying prospectus supplement, or in any other document
that is subsequently filed with the SEC and incorporated by reference, modifies
or is contrary to that previous statement. Any statement so modified
or superseded will not be deemed a part of this prospectus or any accompanying
prospectus supplement, except as so modified or superseded. Since
information that we later file with the SEC will update and supersede previously
incorporated information, you should look at all of the SEC filings that we
incorporate by reference to determine if any of the statements in this
prospectus or any accompanying prospectus supplement or in any documents
previously incorporated by reference have been modified or
superseded.
This
prospectus provides you with a general description of the proposed offering of
our securities. Each time that we sell securities under this prospectus,
we will provide a prospectus supplement that will contain specific information
about the terms of that offering. The prospectus supplement may add to,
update or change information contained in this prospectus and should be read as
superseding this prospectus. You should read both this prospectus and any
prospectus supplement together with additional information described under the
heading "WHERE YOU CAN FIND MORE INFORMATION."
The
prospectus supplement will describe the terms of any offering of securities,
including the offering price to the public in that offering, the purchase price
and net proceeds of that offering, and the other specific terms related to that
offering of securities.
Our ratio of
earnings to fixed charges for each of the five most recently completed fiscal
years and any required interim periods will each be specified in a prospectus
supplement or in a document that we file with the SEC and incorporate by
reference pertaining to the issuance, if any, by us of debt securities in the
future.
Except as may
be otherwise set forth in any prospectus supplement accompanying this
prospectus, we will use the net proceeds we receive from sales of securities
offered hereby for general corporate purposes, which may include the repayment
of indebtedness outstanding from time to time and for working capital, capital
expenditures,
acquisitions
and repurchases of our common stock or other securities. Pending these
uses, the net proceeds may also be temporarily invested in short-term
securities.
SECURITIES
WE MAY OFFER
The descriptions of
the securities contained in this prospectus, together with the applicable
prospectus supplements, summarize the material terms and provisions of the
various types of securities that we may offer. We will describe in the
applicable prospectus supplement relating to any securities the particular terms
of the securities offered by that prospectus supplement. If we indicate in
the applicable prospectus supplement, the terms of the securities may differ
from the terms we have summarized below. We will also include in the
prospectus supplement information, when applicable, about material
U.S. federal income tax considerations relating to the securities and the
securities exchange, if any, on which the securities will be
listed.
We may sell
from time to time, in one or more offerings, any one or more of the
following:
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·
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common
stock;
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·
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preferred
stock;
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·
|
debt
securities;
|
| · | guarantees of debt securities; |
|
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·
|
depositary
shares;
|
|
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·
|
warrants
to purchase common stock, preferred stock, debt securities and/or
depositary shares;
|
|
|
·
|
purchase
contracts;
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|
|
·
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units
consisting of common stock, preferred stock, debt securities, depositary
shares and/or warrants in any
combination; or
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any
combination of the foregoing
securities.
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In this
prospectus, we refer to the common stock, preferred stock, debt securities,
guarantees, depositary shares, warrants, purchase contracts and units
collectively as "securities." The total dollar amount of all
securities that we may issue under this prospectus will not exceed
$250,000,000.
If we issue
debt securities at a discount from their original stated principal amount, then,
for purposes of calculating the total dollar amount of all securities issued
under this prospectus, we will treat the initial offering price of the debt
securities as the total original principal amount of the debt
securities.
This
prospectus may not be used to consummate a sale of securities unless it is
accompanied by a prospectus supplement.
This section
describes the general terms of our common stock. A prospectus supplement
may provide information that is different from this prospectus. If the
information in the prospectus supplement with respect to our common stock being
offered differs from this prospectus, you should rely on the information in the
prospectus supplement. A copy of our articles of incorporation, as
amended, has been incorporated by reference from our filings with the SEC as an
exhibit to the registration statement. Our common stock and the rights of
the holders of our common stock are subject to the applicable provisions of the
Iowa Business Corporation Act, which we refer to as "Iowa law," our articles of
incorporation, our by-laws, as amended, the rights of the holders of our
preferred stock, if any, the rights of the holders of our private notes, as well
as some of the terms of our revolving credit facility and term loan credit
agreement and any other outstanding indebtedness. Certain provisions of
Iowa law and our articles of incorporation and by-laws are described below in
the section titled "CERTAIN PROVISIONS OF IOWA LAW AND THE CORPORATION'S
ARTICLES OF INCORPORATION AND BY-LAWS," including a description of the
classification of our board of directors.
As
of May 18 , 2009, under our articles of incorporation, we had the
authority to issue 200,000,000 shares of common stock, par value $1.00 per
share, of which 44,899,120 shares of our common stock were outstanding as
of that date, held of record by approximately 8,627
shareholders.
The
following description of our common stock is, and any description of our common
stock in a prospectus supplement will be, a summary. A complete
description of the terms of our common stock is contained in our
articles of incorporation and by-laws, each as amended from time to
time.
Voting
Rights
Each
outstanding share of our common stock is entitled to one vote per share of
record on all matters submitted to a vote of shareholders and to vote together
as a single class for the election of directors and in respect of other
corporate matters. At a meeting of shareholders at which a quorum is
present, all questions other than the contested election of directors shall
be decided by determining if the votes cast by shareholders favoring the
action exceed the votes casts by shareholders opposing the action, without
regard to abstentions, unless the matter is one upon which a different vote is
required by express provision of Iowa law, the NYSE or our articles of
incorporation or by-laws. Directors, in a contested election, will be
elected by a plurality of the votes of the shares present at a
meeting. Holders of shares of common stock do not have cumulative voting
rights with respect to the election of directors or any other
matter.
Dividends
Holders of
our common stock are entitled to receive dividends or other distributions when,
as and if declared by our board of directors. The right of our board of
directors to declare dividends, however, is subject to any rights of the holders
of other classes of our capital stock and the availability of sufficient funds
under Iowa law to pay dividends.
Preemptive
Rights
The holders
of our common stock do not have preemptive rights to purchase or subscribe for
any of our capital stock or other securities.
Redemption
The shares of
our common stock are not subject to redemption by operation of a sinking fund or
otherwise.
Liquidation
Rights
In the event
of any liquidation, dissolution or winding up of the Corporation, subject to the
rights, if any, of the holders of other classes of our capital stock, the
holders of shares of our common stock are entitled to receive any of our assets
available for distribution to our shareholders ratably in proportion to the
number of shares held by them.
Options
and Restricted Stock Units
From time to
time, we have issued and expect to continue to issue options and restricted
stock units (RSUs) to various members (i.e., employees) and officers of the
Corporation. As of May 15 , 2009, we had outstanding
(i) stock options to purchase 1,924,164 shares of our common stock, of
which 693,950 shares of common stock were issuable upon exercise of vested stock
options as of that date and (ii) 698,641 undelivered
RSUs.
Listing
Our common
stock is listed on the NYSE under the symbol "HNI."
Transfer
Agent and Registrar
The transfer
agent and registrar for our common stock is Wells Fargo Bank, N.A.,
Attention: Wells Fargo Shareowner Services, 161 North Concord Exchange,
South St. Paul, Minnesota 55075-1139.
This section
describes the general terms of our preferred stock to which any prospectus
supplement may relate. A prospectus supplement will describe the terms
relating to any preferred stock to be offered by us in greater detail
and may provide information that is different from terms described in this
prospectus. If the information in the prospectus supplement with respect
to the particular preferred stock being offered differs from this prospectus,
you should rely on the information in the prospectus supplement. A copy of
our articles of incorporation has been incorporated by reference from our
filings with the SEC as an exhibit to the registration statement. A
certificate of designation or amendment to our articles of incorporation will
specify the terms of the preferred stock being offered, and will be filed or
incorporated by reference as an exhibit to the registration statement before the
preferred stock is issued. The following description of our preferred
stock is, and any description of the preferred stock in a prospectus supplement
will be, a summary. A complete description of the
terms of our preferred stock is contained in our articles of
incorporation and bylaws, each as amended from time to time.
As of
February 27, 2009, under our articles of incorporation, we had the authority to
issue 2,000,000 shares of preferred stock, par value $1.00 per share, which
are issuable in series on terms to be determined by our board of directors.
Accordingly, our board of directors is authorized, without action by the
shareholders, to issue preferred stock from time to time with such dividend,
liquidation, conversion, voting and other rights and restrictions as it may
determine. All shares of any one series of our preferred stock will be
identical, except that shares of any one series issued at different times may
differ as to the dates from which dividends may be cumulative. All series
shall rank equally and shall provide for other terms as described in the
applicable prospectus supplement. As of February 27, 2009, there were no
outstanding shares of our preferred stock. Our board of directors has
not designated any series of preferred stock other than 1,000,000
shares as Series A Junior Participating Preferred Stock (the "Series A
Preferred Stock"). The
Series A Preferred Stock was originally designated for use in connection with
our shareholder rights plan, which expired on August 20, 2008. We
anticipate our board of directors will, in accordance with the terms of our
articles of incorporation and Iowa law, remove the various provisions from our
articles of incorporation designating the Series A Preferred Stock at the
regularly scheduled August or November 2009 board meeting.
Terms
of Series A Preferred Stock
Each share of
Series A Preferred Stock will be entitled, when, as and if declared, to a
minimum preferential quarterly dividend payment of $1.00 per share but will be
entitled to an aggregate dividend of 100 times the dividend declared per share
of our common stock. In the event of liquidation, dissolution or winding
up of the Corporation, the holders of Series A Preferred Stock will be
entitled to a minimum preferential payment of the greater of (a) $100 per
share (plus any accrued but unpaid dividends) and (b) an amount equal to
100 times the payment made per share to holders of our common
stock. Finally, in the event of any merger, consolidation or other
transaction in which outstanding shares of our common stock are converted or
exchanged, each share of Series A Preferred Stock will be entitled to
receive 100 times the amount received per share of our common stock.
These rights are protected by customary anti-dilution provisions.
Shares of
Series A Preferred Stock are not redeemable. Holders of Series A
Preferred Stock have no voting rights, except as required by Iowa law, and no
preemptive rights. Series A Preferred Stock ranks, with respect to the
payment of dividends and the distribution of assets, junior to all series of any
other class of our preferred stock. The issuance of Series A
Preferred Stock could adversely affect the voting power of holders of our common
stock and could have the effect of delaying, deferring or preventing a change in
control of the Corporation. Furthermore, certain provisions of Iowa
law and our articles of incorporation and by-laws could have the effect of
delaying, deferring or preventing a change in control of the
Corporation. A description of such provisions is included below in
the section titled "CERTAIN PROVISIONS OF IOWA LAW AND THE CORPORATION'S
ARTICLES OF INCORPORATION AND BY-LAWS."
Terms
of Other Preferred Stock
As set forth
in our articles of incorporation, the shares of our preferred stock to be issued
will have no preemptive rights. Any prospectus supplement offering our
preferred stock will furnish the following information with respect to the
preferred stock offered by that prospectus supplement:
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the
title and stated value of the preferred stock;
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the
number of shares of preferred stock to be issued and the offering price of
the preferred stock;
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any
dividend rights;
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any
dividend rates, periods, or payment dates, or methods of calculation of
dividends applicable to the preferred stock;
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the
date from which distributions on the preferred stock shall accumulate, if
applicable;
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the
terms and conditions, if applicable, upon which the preferred stock will
be convertible into our common stock, including the conversion price (or
manner of calculation thereof);
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any
right to convert the preferred stock into a different type of
security;
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any
rights and preferences upon our liquidation or winding up of our
affairs;
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any
terms of redemption;
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the
procedures for any auction and remarketing, if any, for the preferred
stock;
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the
provisions for a sinking fund, if any, for the preferred
stock;
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any
listing of the preferred stock on any securities
exchange;
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a
discussion of federal income tax considerations applicable to the
preferred stock;
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the
relative ranking and preferences of the preferred stock as to distribution
rights (including whether any liquidation preference as to the preferred
stock will be treated as a liability for purposes of determining the
availability of assets for distributions to holders of stock ranking
junior to the shares of preferred stock as to distribution
rights);
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any
limitations on issuance of any series of preferred stock ranking senior to
or on a parity with the series of preferred stock being offered as to
distribution rights and rights upon the liquidation, dissolution or
winding up or our affairs; and
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any
other specific terms, preferences, rights, limitations or restrictions of
the preferred stock.
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Rank
Unless
otherwise indicated in the applicable prospectus supplement, shares of our
preferred stock will rank, with respect to payment of distributions and rights
upon our liquidation, dissolution or winding up, and allocation of our earnings
and losses:
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senior
to Series A Preferred Stock, all classes or series of our common stock and
all of our equity securities ranking junior to the preferred
stock;
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on
a parity with all equity securities issued by us, the terms of which
specifically provide that these equity securities rank on a parity with
the preferred stock; and
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junior
to all equity securities issued by us, the terms of which specifically
provide that these equity securities rank senior to the preferred
stock.
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Distributions
Subject to
any preferential rights of any outstanding stock or series of stock, our
preferred shareholders are entitled to receive distributions when, as and if
declared by our board of directors, out of legally available funds and to share
pro rata based on the number of preferred shares, common stock and other parity
equity securities outstanding. The rates and dates of payment of dividends
will be set forth in the prospectus supplement relating to the applicable series
of preferred stock. Dividends will be payable to holders of record of
preferred stock as they appear on our books or, if applicable, the records of
the depositary referred to below on the record dates fixed by the board of
directors. Dividends on a series of preferred stock may be cumulative or
noncumulative.
We
may not declare, pay or set apart for payment dividends on the preferred stock
unless full dividends on other series of preferred stock that rank on an equal
or senior basis have been paid or sufficient funds have been set apart for
payment for:
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all
prior dividend periods of other series of preferred stock that pay
dividends on a cumulative basis; or
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the
immediately preceding dividend period of other series of preferred stock
that pay dividends on a noncumulative
basis.
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Partial
dividends declared on shares of preferred stock and each other series of
preferred stock ranking on an equal basis as to dividends will be declared pro
rata. A pro rata declaration means that the ratio of dividends declared
per share to accrued dividends per share will be the same for each series of
preferred stock. Similarly, we may not declare, pay or set apart for
payment non-stock dividends or make other payments on the common stock or any
other of our stock ranking junior to the preferred stock until full dividends on
the preferred stock have been paid or set apart for payment for:
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all
prior dividend periods if the preferred stock pays dividends on a
cumulative basis; or
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the
immediately preceding dividend period if the preferred stock pays
dividends on a noncumulative basis.
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Voting
Rights
Unless
otherwise required by Iowa law, holders of our preferred stock will not have any
voting rights.
Liquidation
Preference
Upon the
voluntary or involuntary liquidation, dissolution or winding up of our affairs,
then, before any distribution or payment shall be made to the holders of any
common stock or any other class or series of stock ranking junior to the
preferred stock in our distribution of assets upon any liquidation, dissolution
or winding up, the holders of each series of our preferred stock will be
entitled to receive, after payment or provision for payment of our debts and
other liabilities, out of our assets legally available for distribution to
shareholders, liquidating distributions in the amount of the liquidation
preference per share (set forth in the applicable prospectus supplement), plus
an amount, if applicable, equal to all distributions accrued and unpaid thereon
(which shall not include any accumulation in respect of unpaid distributions for
prior distribution periods if the preferred stock does not have a cumulative
distribution). Unless otherwise specified in the applicable prospectus
supplement, after payment of the full amount of the liquidating distributions to
which they are entitled, the holders of preferred stock will have no right or
claim to any of our remaining assets. In the event that, upon our
voluntary or involuntary liquidation, dissolution or winding up, the legally
available assets are insufficient to pay the amount of the liquidating
distributions on all of our outstanding preferred stock and the corresponding
amounts payable on all of our other classes or series of equity securities
ranking on a parity with the preferred stock in the distribution of assets upon
liquidation, dissolution or winding up, then the holders of our preferred stock
and all other such classes or series of equity securities will share ratably in
the distribution of assets in proportion to the full liquidating distributions
to which they would otherwise be respectively entitled.
If the
liquidating distributions are made in full to all holders of preferred stock,
our remaining assets will be distributed among the holders of any other classes
or series of equity security ranking junior to the preferred stock upon our
liquidation, dissolution or winding up, according to their respective rights and
preferences and in each case according to their respective number of shares of
stock.
Conversion
Rights
The terms and
conditions, if any, upon which shares of any series of preferred stock are
convertible into other securities will be set forth in the applicable prospectus
supplement. These terms will include the amount and type of security into
which the shares of preferred stock are convertible, the conversion price (or
manner of calculation thereof), the conversion period, provisions as to whether
conversion will be at the option of the holders of the preferred stock or us,
the events requiring an adjustment of the conversion price and provisions
affecting conversion in the event of the redemption of that preferred
stock.
Redemption
If so
provided in the applicable prospectus supplement, our preferred stock will be
subject to mandatory redemption or redemption at our option, in whole or in
part, in each case upon the terms, at the times and at the redemption prices set
forth in such prospectus supplement. Unless we default in the payment of
the redemption price, dividends will cease to accrue after the redemption date
on shares of preferred stock called for redemption and all rights of holders of
such shares will terminate, except for the right to receive the redemption
price. No series of preferred stock will receive the benefit of a sinking
fund except as set forth in the applicable prospectus supplement.
Registrar
and Transfer Agent
The registrar
and transfer agent for our preferred stock will be set forth in the applicable
prospectus supplement.
If our board
of directors decides to issue any preferred stock, it may discourage or make
more difficult a merger, tender offer, business combination or proxy contest,
assumption of control by a holder of a large block of our securities or the
removal of incumbent management, even if these events were favorable to the
interests of shareholders. Our board of directors, without shareholder
approval, may issue preferred stock with voting and conversion rights and
dividend and liquidation preferences that may adversely affect the holders of
our other equity or debt securities.
This
prospectus describes certain general terms and provisions of the debt securities
we may offer under this prospectus and one or more prospectus supplements.
When we offer to sell a particular series of debt securities, we will
describe the specific terms of the series in a prospectus supplement. The
following description of debt securities will apply to the debt securities
offered by this prospectus unless we provide otherwise in the applicable
prospectus supplement. The applicable prospectus supplement for a
particular series of debt securities may specify different or additional
terms.
We may issue
"senior," "senior subordinated" or "subordinated" debt
securities. "Senior securities" will be direct obligations of ours
and will rank equally and ratably in right of payment with other indebtedness of
ours that is not subordinated. "Senior subordinated securities" will
be subordinated in right of payment to the prior payment in full of senior
indebtedness, as defined in the applicable prospectus supplement, and may rank
equally and ratably with the senior subordinated notes and any other senior
subordinated indebtedness. "Subordinated securities" will be
subordinated in right of payment to senior subordinated securities.
We need not
issue all debt securities of one series at the same time. Unless we
provide otherwise, we may reopen a series, without the consent of the holders of
such series, for issuances of additional securities of that series.
We will issue
the senior debt securities and senior subordinated debt securities under a
senior indenture, which we will enter into with a trustee to be identified
in the applicable prospectus supplement (the "trustee"), and we will issue the
subordinated debt securities under a subordinated indenture, which we will enter
into with the trustee, unless we identify a different trustee in the applicable
prospectus supplement. We use the term "indenture" or "indentures" to
refer to both the senior indenture and the subordinated indenture. Each
indenture will be subject to and governed by the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), and we may supplement the
indenture from time to time. Any trustee under any indenture may resign or
be removed with respect to one or more series of debt securities, and we may
appoint a successor trustee to act with respect to that series. We have
filed a form of indenture relating to senior, senior subordinated
and subordinated debt securities as an exhibit to the registration
statement, of which this prospectus forms a part. The terms of the senior
indenture and subordinated indenture will be substantially similar, except that
the subordinated indenture will include provisions pertaining to the
subordination of the subordinated debt securities and senior subordinated debt
securities to the senior debt securities and any other of our senior securities.
The following statements relating to the debt securities and the indenture
are summaries only, are subject to change and are qualified in their entirety to
the detailed provisions of the indenture, any supplemental indenture and the
discussion contained in any prospectus supplements.
General
The debt
securities will be our direct obligations. We may issue debt securities
from time to time and in one or more
series as our board of
directors may establish by resolution or as we may establish in one or more
supplemental indentures. The particular terms of each series of debt
securities will be described in a prospectus supplement relating to the series.
We may issue debt securities with terms different from those of debt
securities that we previously issued. Our payment obligations under any
series of debt securities may be guaranteed by one or more
co-registrants.
We
may issue debt securities from time to time and in one or more series with the
same or various maturities, at par, at a premium or at a discount. We will
set forth in a prospectus supplement, relating to any series of debt securities
being offered, the initial offering price and the following terms of the debt
securities:
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the
title of the debt securities;
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the
series designation and whether they are senior securities, senior
subordinated securities or subordinated securities;
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the
aggregate principal amount of the debt securities and any limit on the
aggregate amount of the series of debt securities;
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the
price or prices (expressed as a percentage of the aggregate principal
amount) at which we will issue the debt securities and, if other than the
principal amount of the debt securities, the portion of the principal
amount of the debt securities payable upon the maturity of the debt
securities;
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the
date or dates on which we will pay the principal on the debt
securities;
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the
rate or rates (which may be fixed or variable) per annum or the method
used to determine the rate or rates (including any commodity, commodity
index, stock exchange index or financial index) at which the debt
securities will bear interest, the date or dates from which interest will
accrue, the date or dates on which interest will commence and be payable
and any regular record date for the interest payable on any interest
payment date;
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the
place where principal, interest and any additional amounts will be payable
and where the debt securities can be surrendered for transfer, exchange or
conversion;
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the
terms, if any, by which holders of the debt securities may convert or
exchange the debt securities for our common stock, preferred stock or any
other security or property;
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if
convertible, the initial conversion price, the conversion period and any
other terms governing such conversion;
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any
subordination provisions or limitations relating to the debt
securities;
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any
sinking fund requirements;
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any
obligation we have to redeem or purchase the debt securities pursuant to
any sinking fund or analogous provisions or at the option of a holder of
debt securities;
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the
dates on which and the price or prices at which we will repurchase the
debt securities at the option of the holders of debt securities and other
detailed terms and provisions of these repurchase
obligations;
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the
denominations in which the debt securities will be issued, if other than
denominations of $1,000 and any integral multiple
thereof;
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the
portion of principal amount of the debt securities payable upon
declaration of acceleration of the maturity date, if other than the
principal amount;
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whether
we will issue the debt securities in certificated or book-entry
form;
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whether
the debt securities will be issued in hte form of one or more permanent
global securities and, if so, the identity of the depositary for the
same;
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the
designation of the currency, currencies or currency units in which payment
of principal of, premium, and interest on the debt securities will be
made;
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if
payments of principal of, and interest and any additional amounts on, the
debt securities will be made in one or more currencies or currency units
other than that or those in which the debt securities are denominated, the
manner in which the exchange rate with respect to these payments will be
determined;
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the
manner in which the amounts of payment of principal of, and interest and
any additional amounts on, the debt securities will be determined, if
these amounts may be determined by reference to an index based on a
currency or currencies other than that in which the debt securities are
denominated or designated to be payable or by reference to a commodity,
commodity index, stock exchange index or financial index;
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any
addition to or change in the events of default described in this
prospectus or in the indenture with respect to the debt securities and any
change in the acceleration provisions described in this prospectus or in
the indenture with respect to the debt securities;
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any
addition to or change in the covenants described in this prospectus or in
the indenture with respect to the debt securities;
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if
the debt securities are to be issued upon the exercise of debt warrants,
the time, manner and place for them to be authenticated and
delivered;
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any
securities exchange on which we will list the debt
securities;
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any
restrictions on transfer, sale or other assignment;
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any
provisions relating to any security provided for the debt
securities;
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any
provisions relating to any guarantee of the debt
securities;
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any
other terms of the debt securities, which may modify or delete any
provision of the indenture as it applies to that
series; and
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any
depositaries, interest rate calculation agents, exchange rate calculation
agents or other agents with respect to the debt
securities.
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We may issue
debt securities that are exchangeable for or convertible into shares of our
common stock or other securities or property. The terms, if any, on which
the debt securities may be exchanged for or converted into shares of our common
stock or other securities or property will be set forth in the applicable
prospectus supplement. Such terms may include provisions for conversion,
either mandatory, at the option of the holder or at our option, in which case
the number of shares of common stock or other securities or property to be
received by the holders of debt securities would be calculated as of a time and
in the manner stated in the prospectus supplement.
We may issue
debt securities at less than the principal amount payable upon maturity.
We refer to these securities as "original issue discount
securities." If material or applicable, we will describe in the
applicable prospectus supplement special U.S. federal income tax,
accounting and other considerations applicable to original issue discount
securities.
If we
denominate the purchase price of any of the debt securities in a foreign
currency or currencies or a foreign currency unit or units, or if the principal
of, and interest and any additional amounts on, any series of debt securities is
payable in a foreign currency or currencies or a foreign currency unit or units,
we will provide you with information on the restrictions, elections, general tax
considerations, specific terms and other information with respect to that issue
of debt securities and such foreign currency or currencies or foreign currency
unit or units in the applicable prospectus supplement.
Except as may
be set forth in any prospectus supplement relating to the debt securities, an
indenture will not contain any other provisions that would limit our ability to
incur indebtedness or that would afford holders of the debt securities
protection in the event of a highly leveraged or similar transaction involving
us or in the event of a change in control. You should review carefully the
applicable prospectus supplement for information with respect to events of
default and any covenants applicable to the debt securities being
offered.
Payments
and Paying Agents
Unless we
otherwise indicate in the applicable prospectus supplement, we will make payment
of the interest on any debt securities on any interest payment date to the
person in whose name the debt securities, or one or more predecessor securities,
are registered at the close of business on the regular record date for the
interest.
We
will pay principal of, and interest and any additional amounts on, the debt
securities of a particular series at the office of the paying agents designated
by us, except that, unless we otherwise indicate in the applicable
prospectus supplement, we may make interest payments by check, which we
will mail to the holder, or by wire transfer to certain holders. Unless we
otherwise indicate in a prospectus supplement, we will designate the corporate
trust office of the trustee as our sole paying agent for payments with respect
to debt securities of each series. We will name in the applicable
prospectus supplement any other paying agents that we initially designate for
the debt securities of a particular series.
Form,
Transfer and Exchange
Each debt
security will be represented by either one or more global securities registered
in the name of The Depository Trust Company, New York, New York, known
as DTC, as depositary, or a nominee of the depositary (as a "book-entry debt
security"), or a certificate issued in definitive registered form (as a
"certificated debt security"), as described in the applicable prospectus
supplement. Except as described under "Global Debt Securities and
Book-Entry System" below, book-entry debt securities will not be issuable in
certificated form.
Certificated
Debt Securities
You may
transfer or exchange certificated debt securities at the trustee's office or
paying agencies in accordance with the terms of the indenture. No service
charge will be made for any transfer or exchange of certificated debt
securities, but we may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection with a transfer or
exchange.
You may
transfer certificated debt securities and the right to receive the principal of,
and interest and any additional amounts on, certificated debt securities only by
surrendering the old certificate representing those certificated debt securities
and either we or the trustee will reissue the old certificate to the new holder,
or we or the trustee will issue a new certificate to the new
holder.
Global
Debt Securities and Book-Entry System
Each global
debt security representing book-entry debt securities will be deposited with, or
on behalf of, the depositary, and registered in the name of the depositary or a
nominee of the depositary. Ownership of beneficial interests in book-entry
debt securities will be limited to persons that have accounts with the
depositary for the related global debt security, whom we refer to as
participants, or persons that may hold interests through
participants.
Except as
described in this prospectus or any applicable prospectus supplement, beneficial
owners of book-entry debt securities will not be entitled to have securities
registered in their names, will not receive or be entitled to receive physical
delivery of a certificate in definitive form representing securities and will
not be considered the owners or holders of those securities under the indenture.
Accordingly, to exercise any rights of a holder under the indenture, each
person beneficially owning book-entry debt securities must rely on the
procedures of the depositary for the related global debt security and, if that
person is not a participant, on the procedures of the participant through which
that person owns its interest.
We
understand, however, that under existing industry practice, the depositary will
authorize the persons on whose behalf it holds a global debt security to
exercise certain rights of holders of debt securities, and the indenture
provides that we, the trustee and our respective agents will treat as the holder
of a debt security the persons specified in a written statement of the
depositary with respect to that global debt security for purposes of obtaining
any consents or directions required to be given by holders of the debt
securities pursuant to the indenture.
We will make
payments of principal of, and interest and any additional amounts on, book-entry
debt securities to the depositary or its nominee, as the case may be, as the
registered holder of the related global debt security. We, the
trustee and any other agent of ours or agent of the trustee will not have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in a
global debt security or
for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
Any
certificated debt securities issued in exchange for a global debt security will
be registered in such name or names as the depositary shall instruct the
trustee. We expect that such instructions will be based upon directions
received by the depositary from participants with respect to ownership of
book-entry debt securities relating to such global debt security.
For additional
discussion of book entry and certificated securities, see the section entitled
"Legal Ownership of Securities" included in this prospectus. We have
obtained the foregoing information in this section and the "Legal Ownership of
Securities" section concerning the depositary and the depositary's book-entry
system from sources we believe to be reliable. We take no responsibility
for the depositary's performance of its obligations under the rules and
regulations governing its operations.
No
Protection in the Event of a Change in Control
Unless we
provide otherwise in the applicable prospectus supplement, the debt securities
will not contain any provisions that may afford holders of the debt securities
protection in the event we have a change in control or in the event of a highly
leveraged transaction (whether or not such transaction results in a change in
control).
Covenants
Unless we
provide otherwise in the applicable prospectus supplement, the debt securities
will not contain any restrictive covenants, including covenants restricting us
or any of our subsidiaries from incurring, issuing, assuming or guaranteeing any
indebtedness secured by a lien on any of our or our subsidiaries' property or
capital stock or restricting us or any of our subsidiaries from entering into
any sale and leaseback transactions.
Merger,
Consolidation and Sale of Assets
Unless we
provide otherwise in the applicable prospectus supplement, we may not merge with
or into or consolidate with, or convey, transfer or lease all or substantially
all of our properties and assets to, any person (a "successor person"), unless
the following apply:
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either
(a) HNI is the surviving entity or (b) the successor person is a
corporation, partnership, trust or other entity organized and validly
existing under the laws of any United States domestic jurisdiction and
expressly assumes our obligations on the debt securities and under the
indenture;
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immediately
after giving effect to the transaction, no event of default, and no event
that, after notice or lapse of time, or both, would become an event of
default, shall have occurred and be continuing under the
indenture; and
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certain
other conditions that may be set forth in the applicable prospectus
supplement are met.
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This covenant
would not apply to any recapitalization transaction, a change in control of us
or a transaction in which we incur a large amount of additional debt unless the
transactions or change in control included a merger, consolidation or transfer
or lease of substantially all of our assets. Except as may be described in
the applicable prospectus supplement, there are no covenants or other provisions
in the indenture providing for a "put" right or increased interest or that would
otherwise afford holders of debt securities additional protection in the event
of a recapitalization transaction, a change in control of us or a transaction in
which we incur a large amount of additional debt.
Events
of Default Under the Indenture
Unless we
provide otherwise in the applicable prospectus supplement, an "event of default"
will mean, with respect to any series of debt securities, any of the
following:
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default
in the payment of any interest upon any debt security of that series when
it becomes due and payable and continuance of that default for a period of
30 days (unless the entire amount of such payment is deposited by us
with the trustee or with a paying agent before the expiration of the
30-day period);
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default
in the payment of principal of, or premium, if any, on any debt security
of that series when due and payable either at maturity, redemption or
otherwise;
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default
in the deposit of any sinking fund payment, when and as due in respect of
any debt security of that series;
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default
in the performance or breach of any other covenant or warranty by us in
the indenture (other than a covenant or warranty that has been included in
the indenture solely for the benefit of a series of debt securities other
than that series) or in the debt security, which default continues uncured
for a period of 90 days after we receive written notice from the
trustee or we and the trustee receive written notice from the holders of
not less than 25% in principal amount of the outstanding debt securities
of that series as provided in the
indenture;
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we,
pursuant to or within the meaning of any applicable bankruptcy law,
commence a voluntary case, consent to the entry of an order for relief
against us in an involuntary case, consent to the appointment of a
custodian for all or substantially all of our property, make a general
assignment for the benefit of our creditors or admit in writing our
inability generally to pay our debts as they become due; or, similarly, a
court enters an order or decree under any applicable bankruptcy law that
provides for relief against us in an involuntary case, appoints a
custodian for all or substantially all of our properties or orders our
liquidation (and the order remains in effect for 90 days);
and
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any
other event of default provided with respect to debt securities of that
series that is included in any supplemental indenture or is described in
the applicable prospectus supplement accompanying this
prospectus.
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No event of
default with respect to a particular series of debt securities (except as to
certain events of bankruptcy, insolvency or reorganization) necessarily
constitutes an event of default with respect to any other series of debt
securities. An event of default may also be an event of default under our
bank credit agreements or other debt securities in existence from time to time
and under certain guaranties by us of any subsidiary indebtedness. In
addition, certain events of default or an acceleration under the indenture may
also be an event of default under some of our other indebtedness outstanding
from time to time.
Unless we
provide otherwise in the applicable prospectus supplement, if an event of
default with respect to debt securities of any series at the time outstanding
occurs and is continuing (other than certain events of our bankruptcy,
insolvency or reorganization), then the trustee or the holders of not less than
25% in principal amount of the outstanding debt securities of that series may,
by written notice to us (and to the trustee if given by the holders), declare to
be due and payable immediately the principal (or, if the debt securities of that
series are discount securities, that portion of the principal amount as may be
specified in the terms of that series) of and accrued and unpaid interest, if
any, of all debt securities of that series. In the case of an event of
default resulting from certain events of bankruptcy, insolvency or
reorganization, the principal (or such specified amount) of and accrued and
unpaid interest, if any, of all outstanding debt securities will become and be
immediately due and payable without any declaration or other act by the trustee
or any holder of outstanding debt securities.
At any time
after an acceleration with respect to debt securities of a series has been made,
but before a judgment or decree for payment of the money due has been obtained
by the trustee, the holders of not less than a majority in principal amount of
the outstanding debt securities of that series may cancel the acceleration and
annul its consequences if the rescission would not conflict with any judgment or
decree and if all existing events of default with respect to that series have
been cured or waived except nonpayment of principal (or such lesser amount) or
interest that has become due solely because of the acceleration.
The indenture
also provides that the holders of not less than a majority in principal amount
of the outstanding debt securities of any series may waive any past default with
respect to that series and its consequences, except a default involving the
following:
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our
failure to pay the principal of, and interest and any additional amounts
on, any debt security; or
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a
covenant or provision contained in the indenture that cannot be modified
or amended without the consent of the holders of each outstanding debt
security affected by the default.
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The trustee
is generally required to give notice to the holders of debt securities of each
affected series as provided by the Trust Indenture Act. The indenture
provides that the trustee shall withhold notice to the holders of debt
securities of any series of any default or event of default
that the Corporation is given a 90-day period to cure under the
indenture, until at least 30 calendar days after the occurrence
thereof.
Unless
we provide otherwise in the applicable prospectus supplement, the indenture will
provide that the trustee will be under no obligation to exercise any of its
rights or powers under the indenture at the request or direction of any holder
of any such outstanding debt securities unless the trustee receives indemnity
satisfactory to it against any loss, liability or expense. Subject to
certain rights of the trustee, the holders of a majority in
principal amount of the outstanding debt securities of any series will have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the trustee or exercising any trust or power conferred
on the trustee with respect to the debt securities of that series. The
trustee may, however, refuse to follow any direction that conflicts with the
indenture or any law.
Unless we
provide otherwise in the applicable prospectus supplement, no holder of any debt
security of any series will have any right to institute any proceeding, judicial
or otherwise, with respect to the indenture or for the appointment of a receiver
or trustee, or for any remedy under the indenture, unless:
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that
holder has previously given to the trustee written notice of a continuing
event of default with respect to debt securities of that series;
and
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the
holders of at least 25% in principal amount of the outstanding debt
securities of that series have made written request, and offered
reasonable indemnity, to the trustee to institute such proceeding as
trustee, and the trustee shall not have received from the holders of a
majority in principal amount of the outstanding debt securities of that
series a direction inconsistent with that request and has failed to
institute the proceeding within
60 days.
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Notwithstanding the
foregoing, except as provided in the subordination provisions, if any, the
holder of any debt security will have an absolute and unconditional right to
receive payment of the principal of, and any interest or additional amounts on,
that debt security on or after the due dates expressed in that debt security and
to institute suit for the enforcement of payment.
The indenture
requires us, within 120 days after the end of our fiscal year, to furnish
to the trustee a certificate as to compliance with the indenture, or, in the
event of noncompliance, specify the noncompliance and the nature and status of
the noncompliance.
Modification
of Indenture and Waiver
Except as
specified below, modifications and amendments to the indenture require the
approval of not less than a majority in principal amount of our outstanding debt
securities.
Changes
Requiring the Unanimous Approval
We and the
trustee may not make any modification or amendment to the indenture without the
consent of the holder of each affected debt security then outstanding if that
amendment will have any of the following results:
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reduce
the rate of or extend the time for payment of interest, including default
interest, on any debt security;
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reduce
the principal of or any additional amounts on or change the fixed maturity
of any debt security or reduce the amount of, or postpone the date fixed
for, the payment of any sinking fund or analogous obligation with respect
to any series of debt securities;
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reduce
the principal amount of discount securities payable upon acceleration of
maturity;
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waive
a default in the payment of the principal of, and interest or any
additional amounts on, any debt security, except a rescission of
acceleration of the debt securities of any series by the holders of at
least a majority in aggregate principal amount of the then outstanding
debt securities of that series and a waiver of the payment default that
resulted from that acceleration;
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make
the principal of, or interest or any additional amounts on, any debt
security payable in currency other than that stated in the debt
security;
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change
the place of payment on a debt security;
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change
the currency or currencies of payment of the principal of, and any
premium, make-whole payment, interest or additional amounts on, any debt
security;
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impair
the right to initiate suit for the enforcement of any payment on or with
respect to any debt security;
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reduce
the percentage of holders of debt securities whose consent is needed to
modify or amend an indenture, to waive compliance with certain provisions
of an indenture or to waive certain defaults;
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waive
a redemption payment with respect to any debt
security; or
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make
any change to certain provisions of the indenture relating to, among other
things, the right of holders of debt securities to receive payment of the
principal of, and interest and any additional amount on, those debt
securities, the right of holders to institute suit for the enforcement of
any payment or the right of holders to waive past
defaults.
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Changes
Not Requiring Approval of Debt Holders
We and the
trustee may modify or amend an indenture, without the consent of any holder of
debt securities, for any of the following purposes:
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to
evidence the succession of another person to us as obligor under the
indenture;
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to
add to our existing covenants additional covenants for the benefit of the
holders of all or any series of debt securities, or to surrender any right
or power conferred upon us in the indenture;
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to
add events of default for the benefit of the holders of all or any series
of debt securities;
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to
add or change any provisions of the indenture to facilitate the issuance
of, or to liberalize the terms of, debt securities in bearer form, or to
permit or facilitate the issuance of debt securities in uncertificated
form;
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to
add, change or eliminate any provisions of the indenture, provided that
any addition, change or elimination (a) shall neither (i) apply
to any debt security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision nor
(ii) modify the rights of the holder of any debt security with
respect to such provision, or (b) shall become effective only when
there are no outstanding debt securities;
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to
establish the form or terms of debt securities of any series, including
the provisions and procedures, if applicable, for the conversion or
exchange of the debt securities into our common stock, preferred stock or
other securities or property;
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to
evidence and provide for the acceptance or appointment of a successor
trustee or facilitate the administration of the trusts under the indenture
by more than one trustee; or
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to
cure any ambiguity, defect or inconsistency in the indenture, provided
that the action does not adversely affect the interests of holders of debt
securities of any series issued under the
indenture.
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Defeasance
of Debt Securities and Certain Covenants in Certain
Circumstances
Legal
Defeasance
Unless the
terms of the applicable series of debt securities provide otherwise, we may be
discharged from any and all obligations in respect of the debt securities of any
series (except for certain obligations to register the transfer or exchange of
debt securities of the series; to replace stolen, lost or mutilated debt
securities of the series; and to maintain paying agencies and certain provisions
relating to the treatment of funds held by paying agents). We will be so
discharged upon the deposit with the trustee, in trust, of money and/or
U.S. government obligations that, through the payment of interest and
principal in accordance with their terms, will provide money in an amount
sufficient to pay and discharge each installment of principal, interest and any
additional amounts on and any
mandatory sinking fund
payments in respect of the debt securities of that series on the stated maturity
of such payments in accordance with the terms of the indenture and those debt
securities.
This
discharge may occur only if, among other things, we have delivered to the
trustee an officers' certificate and an opinion of counsel stating that we have
received from, or there has been published by, the U.S. Internal Revenue
Service a ruling or, since the date of execution of the indenture, there has
been a change in the applicable U.S. federal income tax law, in either case
to the effect that holders of the debt securities of such series will not
recognize income, gain or loss for U.S. federal income tax purposes as a
result of the deposit, defeasance
and discharge and will be subject to U.S. federal income tax on the same
amount and in the same manner and at the same times as would have been the case
if the deposit, defeasance and discharge had not
occurred.
Defeasance
of Certain Covenants
Unless the
terms of the applicable series of debt securities provide otherwise, upon
compliance with certain conditions, we may omit to comply with the restrictive
covenants contained in the indenture, as well as any additional covenants
contained in the applicable prospectus supplement.
The
conditions include, among others, the following:
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depositing
with the trustee money and/or U.S. government obligations that,
through the payment of interest and principal in accordance with their
terms, will provide money in an amount sufficient, in the opinion of a
nationally recognized firm of independent public accountants, to pay
principal, interest and any additional amounts on and any mandatory
sinking fund payments in respect of the debt securities of that series on
the stated maturity of those payments in accordance with the terms of the
indenture and those debt securities; and
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delivering
to the trustee an opinion of counsel to the effect that the holders of the
debt securities of that series will not recognize income, gain or loss for
U.S. federal income tax purposes as a result of the deposit and
related covenant defeasance and will be subject to U.S. federal
income tax in the same amount and in the same manner and at the same times
as would have been the case if the deposit and related covenant defeasance
had not occurred.
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Covenant
Defeasance and Events of Default
If we
exercise our option, as described above, not to comply with certain covenants of
the indenture with respect to any series of debt securities, and the debt
securities of that series are declared due and payable because of the occurrence
of any event of default, the amount of money and/or U.S. government
obligations on deposit with the trustee will be sufficient
to pay amounts due on the debt securities of that series at the time of their
stated maturity but may not be sufficient to pay amounts due on the debt
securities of that series at the time of the acceleration resulting from the
event of default. However, we will remain liable for those
payments.
Guarantees
Our payment
obligations under any series of debt securities may be guaranteed by one or more
co-registrants or such other of our subsidiaries that from time to time may
become subsidiary guarantors under one or more indentures. The terms of
any such guarantee will be set forth in the applicable prospectus
supplement.
Subordination
We will set
forth in the applicable prospectus supplement the terms and conditions, if any,
upon which any series of senior subordinated securities or subordinated
securities is subordinated to debt securities of another series or to other
indebtedness of ours. The terms will include a description of the
following:
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the
indebtedness ranking senior to the debt securities being
offered;
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any
restrictions on payments to the holders of the debt securities being
offered while a default with respect to the senior indebtedness is
continuing;
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any
restrictions on payments to the holders of the debt securities being
offered following an event of
default; and
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Conversion
and Exchange Rights
The terms on
which debt securities of any series may be convertible into or exchangeable for
our common stock, preferred stock, or other securities or property of the
Corporation will be described in the applicable prospectus supplement.
These terms will include the following:
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the
conversion or exchange price or the manner of calculating the
price;
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the
exchange or conversion period;
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whether
the conversion or exchange is mandatory, or voluntary at the option of the
holder or at our option;
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any
restrictions on conversion or exchange in the event of redemption of the
debt securities and any restrictions on conversion or
exchange; and
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the
means of calculating the number of shares of our common stock, preferred
stock or other securities or property of HNI to be received by the holders
of debt securities.
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The conversion or
exchange price of any debt securities of any series that are convertible into
our common stock or preferred stock may be adjusted for any stock dividends,
stock splits, reclassification, combinations or similar transactions, as set
forth in the applicable prospectus supplement.
Redemption
of Debt Securities
The debt
securities may be subject to optional or mandatory redemption on terms and
conditions described in the applicable prospectus supplement. Subject to
such terms, we may opt at any time to partially or entirely redeem the debt
securities.
If less than
all the debt securities of any series are to be redeemed or purchased in an
offer to purchase at any time, the trustee will select the debt securities of
that series to be redeemed or purchased by such method as the trustee deems fair
and appropriate.
Governing
Law
The
indentures, the debt securities and the guarantees of debt securities
will be governed by and construed in accordance with the laws of the state of
New York, except to the extent that the Trust Indenture Act is
applicable.
We may issue
receipts for depositary shares representing fractional shares of preferred
stock. The fractional share of the applicable series of preferred stock
represented by each depositary share will be set forth in the applicable
prospectus supplement.
The shares of
any series of preferred stock underlying any depositary shares that we may sell
under this prospectus will be deposited under a deposit agreement between us and
a depositary selected by us. Subject to the terms of the deposit
agreement, each holder of a depositary share will be entitled, in proportion to
the applicable fraction of a share of the preferred stock underlying the
depositary share, to all of the rights, preferences and privileges, and will be
subject to the qualifications and restrictions, of the preferred stock
underlying that depositary share.
The
depositary shares will be evidenced by depositary receipts issued under the
deposit agreement. Depositary receipts will be distributed to the holders
of the depositary shares that are sold in the applicable offering. We will
incorporate by reference into the registration statement of which this
prospectus is a part the form of any deposit agreement, including a form of
depositary receipt, that describes the terms of any depositary shares we are
offering before the issuance of the related depositary shares. The
following summaries of material provisions of the deposit agreement, the
depositary shares and the depositary receipts are subject to, and qualified in
their entirety by reference to, all of the provisions of the deposit agreement
applicable to a particular offering of depositary shares. We urge you to
read the prospectus supplements relating to any depositary shares that are sold
under this prospectus, as well as the complete deposit agreement and depositary
receipt.
Form
Pending the
preparation of definitive depositary receipts, the depositary may, upon our
written order, issue temporary depositary receipts substantially identical to
the definitive depositary receipts but not in definitive
form. These temporary depositary receipts will entitle their
holders to all of the rights of definitive depositary receipts. Temporary
depositary receipts will then be exchangeable for definitive depositary receipts
at our expense.
Dividends
and Other Distributions
The
depositary will distribute all cash dividends or other cash distributions
received with respect to the underlying preferred stock to the record holders of
depositary shares in proportion to the number of depositary shares owned by
those holders.
If there is a
distribution other than in cash, the depositary will distribute property
received by it to the record holders of depositary shares in proportion to the
number of depositary shares owned by those holders, unless the depositary
determines that it is not feasible to do so. If this occurs, the
depositary may, with our approval, sell the property and distribute the net
proceeds from the sale to those holders in proportion to the number of
depositary shares owned by them.
The amount
distributed to holders of depositary shares will be reduced by any amounts
required to be withheld by us or the preferred stock depositary on account of
taxes or other governmental charges.
If a series of preferred stock underlying the depositary shares has a liquidation preference, in the event of our voluntary or involuntary liquidation, dissolution or winding up, holders of depositary shares will be entitled to receive the fraction of the liquidation preference accorded each share of the applicable series of preferred stock, as set forth in the applicable prospectus supplement.
Withdrawal
of Underlying Preferred Stock
Except as
otherwise provided in a prospectus supplement, holders may surrender depositary
receipts at the principal office of the depositary and, upon payment of any
unpaid amount due to the depositary, be entitled to receive the number of whole
shares of underlying preferred stock and all money and other property
represented by the related depositary shares. We will not issue any
partial shares of preferred stock. If the holder delivers depositary
receipts evidencing a number of depositary shares that represent more than a
whole number of shares of preferred stock, the depositary will issue a new
depositary receipt evidencing the excess number of depositary shares to the
holder.
Redemption
of Depositary Shares
If the
preferred stock underlying any depositary shares we may sell under this
prospectus is subject to redemption, the depositary shares will be redeemed from
the proceeds received by the depositary resulting from any such redemption, in
whole or in part, of that underlying preferred stock. The redemption price
per depositary share will be equal to the applicable fraction of the redemption
price per share payable with respect to the underlying preferred stock.
Whenever we redeem shares of underlying preferred stock that are held by
the depositary, the depositary will redeem, as of the same redemption date, the
number of depositary shares representing the shares of underlying preferred
stock so redeemed. If fewer than all of the depositary shares are to be
redeemed, the depositary shares to be redeemed will be selected by lot or
proportionately, as may be determined by the depositary.
After the
date fixed for redemption, the depositary shares called for redemption will no
longer be deemed to be outstanding, and all rights of the holders of the
depositary shares will cease, except the right to receive the monies payable and
any other property to which the holders were entitled upon surrender to the
preferred stock depositary of the depositary receipts evidencing the depositary
shares. Any funds deposited by us with the preferred stock depositary for
any depositary shares that the holders fail to redeem will be returned to us
after a period of two years from the date the funds are deposited.
Voting
Upon receipt
of notice of any meeting at which holders of the preferred stock underlying any
depositary shares that we may sell under this prospectus are entitled to vote,
the depositary will mail the information contained in the notice to the record
holders of the depositary shares. Each record holder of the depositary
shares on the record date, which will be the same date as the record date for
the underlying preferred stock, will be entitled to instruct the depositary as
to the exercise of the voting rights pertaining to the amount of the underlying
preferred stock represented by the holder's depositary shares. The
depositary will then try, as far as practicable, to vote the number of shares of
preferred stock underlying those depositary shares in accordance with those
instructions, and we will agree to take all reasonable actions which may be
deemed necessary by the depositary to enable the depositary to do so. The
depositary will not vote the underlying preferred stock to the extent it does
not receive specific instructions with respect to the depositary shares
representing such preferred stock.
Conversion
of Preferred Stock
If the
prospectus supplement relating to any depositary shares that we may sell under
this prospectus states that the underlying preferred stock is convertible into
our common stock or other securities, the following will apply. The
depositary shares, as such, will not be convertible into any of our securities.
Rather, any holder of the depositary shares may surrender the related
depositary receipts to the depositary with written instructions that direct us
to cause conversion of the preferred stock represented by the depositary shares
into or for whole shares of our common stock or other securities, as
applicable. Upon receipt of those instructions and any amounts payable by
the holder in connection with the conversion, we will cause the conversion using
the same procedures as those provided for conversion of the underlying preferred
stock. If only some of a holder's depositary shares are converted, a new
depositary receipt or receipts will be issued to the holder for any depositary
shares not converted.
Amendment and Termination of the Deposit Agreement
The
form of depositary receipt evidencing the depositary shares and any provision of
the deposit agreement may at any time be amended by agreement between us and the
depositary. However, any amendment which materially and adversely alters
the rights of the holders of depositary shares will not be effective until
90 days after notice of that amendment has been given to the holders.
Each holder of depositary shares at the time any amendment becomes
effective shall be deemed to consent and agree to that amendment and to be bound
by the deposit agreement as so amended. The deposit agreement may be
terminated by us or by the depositary only if all outstanding depositary shares
have been redeemed or converted into any other securities into which the
underlying preferred stock is convertible or there has been a final
distribution, including to holders of depositary receipts, of the underlying
preferred stock in connection with our liquidation, dissolution or winding
up.
Charges
of Depositary
We will pay
all transfer and other taxes and governmental charges arising solely from the
existence of the depositary arrangement. We will also pay charges of the
depositary in connection with the initial deposit of the preferred stock, the
initial issuance of the depositary shares, any redemption of the preferred stock
and all withdrawals of preferred stock by owners of depositary shares.
Holders of depositary receipts will pay transfer, income and other taxes
and governmental charges and other specified charges as provided in the deposit
arrangement for their accounts. If these charges have not been paid, the
depositary may refuse to transfer depositary shares, withhold dividends and
distributions and sell the depositary shares evidenced by the depositary
receipt.
Limitation
on Liability
Neither we
nor the depositary will be liable if either of us is prevented or delayed by law
or any circumstance beyond our control in performing our respective obligations
under the deposit agreement. Our
obligations and those of
the depositary will be limited to performance of our respective duties under the
deposit agreement without, in our case, negligence or bad faith or, in the case
of the depositary, negligence or willful misconduct. We and the depositary
may rely upon advice of counsel or accountants, or upon information provided by
persons presenting the underlying preferred stock for deposit, holders of
depositary receipts or other persons believed by us in good faith to be
competent and on documents believed to be genuine.
Corporate
Trust Office of Preferred Stock Depositary
The preferred
stock depositary's corporate trust office will be set forth in the applicable
prospectus supplement relating to a series of depositary shares. The
preferred stock depositary will act as transfer agent and registrar for
depositary receipts, and, if shares of a series of preferred stock are
redeemable, the preferred stock depositary will act as redemption agent for the
corresponding depositary receipts.
Resignation
and Removal of Depositary
The
depositary may resign at any time by delivering notice to us of its election to
resign. We may remove the depositary at any time. Any resignation or
removal will take effect upon the appointment of a successor depositary and its
acceptance of the appointment. The successor depositary must be appointed
within 60 days after delivery of the notice of resignation or removal and
must be a bank or trust company having its principal office in the
United States and having a combined capital and surplus of at least
$50,000,000.
Reports
to Holders
We will
deliver all required reports and communications to holders of the preferred
stock to the preferred stock depositary, and it will forward those reports and
communications to the holders of depositary shares. Upon request, the
preferred stock depositary will provide for inspection to the holders of
depositary shares the transfer books of the depositary and the list of
holders of receipts; provided that any requesting holder certifies to the
preferred stock depositary that such inspection is for a proper purpose
reasonably related to such person's interest as an owner of depositary shares
evidenced by the receipts.
General
We may issue
warrants to purchase common stock (which we refer to as common stock warrants),
preferred stock (which we refer to as preferred stock warrants), debt securities
(which we refer to as debt security warrants) or depositary shares (which we
refer to as depositary share warrants). Any of these warrants may be
issued independently or together with any other securities offered by this
prospectus and may be attached to or separate from those
securities.
While the
terms we have summarized below will generally apply to any future warrants we
may offer under this prospectus, we will describe the particular terms of any
warrants that we may offer in more detail in the applicable prospectus
supplement. The terms of any warrants we offer under a prospectus
supplement may differ from the terms we describe below.
We may issue
the warrants under a warrant agreement, which we will enter into with a warrant
agent to be selected by us. Each warrant agent will act solely as our
agent under the applicable warrant agreement and will not assume any obligation
or relationship of agency or trust with any holder of any warrant. A
single bank or trust company may act as warrant agent for more than one issue of
warrants. A warrant agent will have no duty or responsibility in case of
any default by us under the applicable warrant agreement or warrant, including
any duty or responsibility to initiate any proceedings at law or otherwise, or
to make any demand upon us. Any holder of a warrant may, without the
consent of the related warrant agent or the holder of any other warrant, enforce
by appropriate legal action its right to exercise, and receive the securities
purchasable upon exercise of, its warrants.
We will
incorporate by reference into the registration statement of which this
prospectus is a part the form of warrant agreement, including a form of warrant
certificate, that describes the terms of the series of warrants we are offering
before the issuance of the related series of warrants. The following
summaries of material provisions of the warrants and the warrant agreements are
subject to, and qualified in their entirety by reference to, all the provisions
of the warrant agreement applicable to a particular series of warrants. We
urge you to read the applicable
prospectus supplements
related to the warrants that we sell under this prospectus, as well as the
complete warrant agreements that contain the terms of the warrants.
We will set
forth in the applicable prospectus supplement the terms of the warrants in
respect of which this prospectus is being delivered, including, when applicable,
the following:
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the
title of the warrants;
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the
aggregate number of the warrants;
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the
price or prices at which the warrants will be issued;
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the
designation, number and terms of the securities purchasable upon exercise
of the warrants;
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the
designation and terms of the other securities, if any, with which the
warrants are issued and the number of warrants issued with each such
security;
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the
date, if any, on and after which the warrants and the related underlying
securities will be separately transferable;
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the
price at which each underlying security purchasable upon exercise of the
warrants may be purchased;
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the
date on which the right to exercise the warrants will commence and the
date on which such right will
expire;
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the
minimum amount of the warrants that may be exercised at any one
time;
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any
information with respect to book-entry procedures;
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the
effect of any merger, consolidation, sale or other disposition of our
business on the warrant agreement and the warrants;
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any
other terms of the warrants, including terms, procedures and limitations
relating to the transferability, exchange and exercise of such
warrants;
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the
terms of any rights to redeem or call, or accelerate the expiration of,
the warrants;
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the
date on which the right to exercise the warrants begins and the date on
which that right expires;
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the
U.S. federal income tax consequences of holding or exercising the
warrants; and
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any
other specific terms, preferences, rights or limitations of, or
restrictions on the warrants.
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Unless
specified in an applicable prospectus supplement, common stock warrants,
preferred stock warrants, debt security warrants or depositary share warrants
will be in registered form only.
A holder of
warrant certificates may exchange them for new certificates of different
denominations, present them for registration of transfer and exercise them at
the corporate trust office of the warrant agent or any other office indicated in
the applicable prospectus supplement. Until any common stock warrants,
preferred stock warrants, debt security warrants or depositary share warrants
are exercised, holders of the warrants will not have any rights of holders of
the underlying common stock, preferred stock, debt securities or depositary
shares, except to the extent set forth under the heading "Warrant Adjustments"
below.
Exercise
of Warrants
Each warrant
will entitle the holder to purchase for cash shares of common stock, preferred
stock, debt securities or depositary shares at the applicable exercise price set
forth in, or determined as described in, the applicable prospectus
supplement. Warrants may be exercised at any time up to the close of
business on the expiration date set forth in the applicable prospectus
supplement. After the close of business on the expiration date,
unexercised warrants will become void.
Warrants may
be exercised by delivering to the corporation trust office of the warrant agent
or any other officer indicated in the applicable prospectus supplement
(a) the warrant certificate properly completed and duly
executed and
(b) payment of the amount due upon exercise. As soon as practicable
following exercise, we will forward the shares of common stock, preferred stock,
debt securities or depositary shares as applicable. If less than all of
the warrants represented by a warrant certificate are exercised, a new warrant
certificate will be issued for the remaining warrants. If we so indicate
in the applicable prospectus supplement, holders of the warrants may surrender
securities as all or a part of the exercise price for the warrants.
Amendments
and Supplements to the Warrant Agreements
We may amend
or supplement a warrant agreement without the consent of the holders of the
applicable warrants to cure ambiguities in the warrant agreement, to cure or
correct a defective provision in the warrant agreement or to provide for other
matters under the warrant agreement that we and the warrant agent deem necessary
or desirable, so long as, in each case, such amendments or supplements do not
materially adversely affect the interests of the holders of the
warrants.
Warrant
Adjustments
Unless the
applicable prospectus supplement states otherwise, the exercise price of, and
the number of securities covered by, a common stock warrant, preferred stock
warrant, debt security warrant or depositary share warrant will be adjusted
proportionately if we subdivide or combine our common stock, preferred stock or
depositary shares, as applicable. In addition, unless the prospectus
supplement states otherwise, if we, without payment:
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issue
capital stock or other securities convertible into or exchangeable for
common stock or preferred stock, or any rights to subscribe for, purchase
or otherwise acquire any of the foregoing, as a dividend or distribution
to holders of our common stock or preferred stock;
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pay
any cash to holders of our common stock or preferred stock other than a
cash dividend paid out of our current or retained earnings or other than
in accordance with the terms of the preferred stock;
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issue
any evidence of our indebtedness or rights to subscribe for or purchase
our indebtedness to holders of our common stock or preferred
stock; or
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issue
common stock or preferred stock or additional stock or other securities or
property to holders of our common stock or preferred stock by way of a
spin-off, split-up, reclassification, combination of shares or similar
corporate rearrangement,
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then the
holders of common stock warrants, preferred stock warrants, debt security
warrants and depositary share warrants, as applicable, will be entitled to
receive upon exercise of the warrants, in addition to the securities otherwise
receivable upon exercise of the warrants and without paying any additional
consideration, the amount of stock and other securities and property such
holders would have been entitled to receive had they held the common stock,
preferred stock, debt securities or depositary shares, as applicable, issuable
under the warrants on the dates on which holders of those securities received or
became entitled to receive such additional stock and other securities and
property.
Except as
stated above, the exercise price and number of securities covered by a common
stock warrant, preferred stock warrant, debt security warrant and depositary
share warrant, and the amounts of other securities or property to be received,
if any, upon exercise of those warrants, will not be adjusted or provided for if
we issue those securities or any securities convertible into or exchangeable for
those securities, or securities carrying the right to purchase those securities
or securities convertible into or exchangeable for those
securities.
Holders of
common stock warrants, preferred stock warrants, debt security warrants and
depositary share warrants may have additional rights under the following
circumstances:
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certain
reclassifications, capital reorganizations or changes of the common stock,
preferred stock or depositary shares, as applicable;
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certain
share exchanges, mergers or similar transactions involving us and which
result in changes of the common stock, preferred stock or depositary
shares, as applicable; or
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certain
sales or dispositions to another entity of all or substantially all of our
property and assets.
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If one of the
above transactions occurs and holders of our common stock, preferred stock, debt
securities or depositary shares are entitled to receive stock, securities or
other property with respect to or in exchange for their securities, the holders
of the common stock warrants, preferred stock warrants, debt security warrants
and depositary share warrants then outstanding, as applicable, will be entitled
to receive upon exercise of their warrants the kind and amount of shares of
stock and other securities or property that they would have received upon the
applicable transaction if they had exercised their warrants immediately before
the transaction.
DESCRIPTION
OF PURCHASE CONTRACTS
We may
issue purchase contracts, including contracts obligating holders to purchase
from us, and for us to sell to holders, a specific or varying number of debt
securities, shares of common stock or preferred stock, depositary shares,
warrants or any combination of the above, at a future date or dates.
Alternatively, the purchase contracts may obligate us to purchase from
holders, and obligate holders to sell to us, a specific or varying number of
debt securities, shares of common stock or preferred stock, depositary shares,
warrants or any combination of the above. The price of the securities
subject to the purchase contracts may be fixed at the time the purchase
contracts are issued or may be determined by reference to a specific formula
described in the purchase contracts. We may issue purchase contracts
separately or as a part of units each consisting of a purchase contract and one
or more of the other
securities described in this prospectus or securities of third parties,
including U.S. Treasury securities, securing the holder's obligations under
the purchase contract. If we issue a purchase contract as part of a unit,
the applicable prospectus supplement will state whether the purchase contract
will be separable from the other securities in the unit before
the purchase contract
settlement date. The purchase contracts may require us to make periodic
payments to holders or vice versa and the payments may be unsecured or
pre-funded on some basis. The purchase contracts may require holders to
secure the holder's obligations in a manner specified in the applicable
prospectus supplement, and in certain circumstances we may deliver newly issued
prepaid purchase contracts, often known as prepaid securities, upon release to a
holder of any collateral securing such holder's obligations under the original
purchase contract.
The
applicable prospectus supplement will describe the terms of any purchase
contracts in respect of which this prospectus is being delivered, including, to
the extent applicable, the following:
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whether
the purchase contracts obligate the holder or us to purchase or sell, or
both purchase and sell, the securities subject to purchase under the
purchase contract, and the nature and amount of each of those securities
or the method of determining those amounts;
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whether
the purchase contracts are to be prepaid or not;
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whether
the purchase contracts will be issued as part of a unit and, if so, the
other securities comprising the unit;
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whether
the purchase contracts are to be settled by delivery, or by reference or
linkage to the value, performance or level of the securities subject to
purchase under the purchase contract;
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any
acceleration, cancellation, termination or other provisions relating to
the settlement of the purchase contracts; and
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whether
the purchase contracts will be issued in fully registered or global
form.
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Material
U.S. federal income tax consideration applicable to the stock purchase
contracts and the stock purchase units will also be discussed in the applicable
prospectus supplement.
DESCRIPTION
OF UNITS
The following
description, together with the additional information we include in any
applicable prospectus supplement, summarizes the material terms and provisions
of the units that we may offer under this prospectus. Units may be offered
independently or together with common stock, preferred stock, debt securities,
depositary shares and warrants offered by any prospectus supplement, and may be
attached to or separate from those securities. While the terms we have
summarized below will generally apply to any future units that we may offer
under this prospectus, we will describe the particular terms of any series of
units that we may offer in more detail in the applicable prospectus supplement.
The terms of any units offered under a prospectus supplement may differ
from the terms described below.
We will
incorporate by reference into the registration statement of which this
prospectus is a part the form of unit agreement, including a form of unit
certificate, if any, that describes the terms of the series of units we are
offering before the issuance of the related series of units. The following
summaries of material provisions of the units and the unit agreements are
subject to, and qualified in their entirety by reference to, all the provisions
of the unit agreement applicable to a particular series of units. We urge
you to read the applicable
prospectus supplements related to the units that we sell under this prospectus,
as well as the complete unit agreements that contain the terms of the
units.
General
We may issue
units consisting of common stock, preferred stock, debt securities, depositary
shares and/or warrants in any combination. Each unit will be issued so
that the holder of the unit is also the holder of each security included in the
unit. Thus, the holder of a unit will have the rights and obligations of a
holder of each included security. The unit agreement under which a unit is
issued may provide that the securities included in the unit may not be held or
transferred separately, at any time or at any time before a specified
date.
We will
describe in the applicable prospectus supplement the terms of the series of
units, including the following:
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the
designation and terms of the units and of the securities comprising the
units, including whether and under what circumstances those securities may
be held or transferred separately;
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any
provisions of the governing unit agreement that differ from those
described below; and
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any
provisions for the issuance, payment, settlement, transfer or exchange of
the units or of the securities comprising the
units.
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The
provisions described in this section, as well as those described under
"DESCRIPTION OF COMMON STOCK," "DESCRIPTION OF PREFERRED
STOCK," "DESCRIPTION OF DEBT SECURITIES," "DESCRIPTION OF DEPOSITORY
SHARES" and "DESCRIPTION OF WARRANTS" will apply to each unit and to any common
stock, preferred stock, debt security, depositary share or warrant included in
each unit, respectively.
Issuance
in Series
We may issue units in such amounts and in such numerous distinct series as we determine.
Enforceability
of Rights by Holders of Units
Each unit
agent will act solely as our agent under the applicable unit agreement and will
not assume any obligation or relationship of agency or trust with any holder of
any unit. A single bank or trust company may act as unit agent for more
than one series of units. A unit agent will have no duty or responsibility
in case of any default by us under the applicable unit agreement or unit,
including any duty or responsibility to initiate any proceedings at law or
otherwise, or to make any demand upon us. Any holder of a unit may,
without the consent of the related unit agent or the holder of any other unit,
enforce by appropriate legal action its rights as holder under any security
included in the unit.
Title
We, the unit
agent and any of their agents may treat the registered holder of any unit
certificate as an absolute owner of the units evidenced by that certificate for
any purposes and as the person entitled to exercise the rights attaching to the
units so requested, despite any notice to the contrary.
LEGAL
OWNERSHIP OF SECURITIES
We can issue
securities in registered form or in the form of one or more global securities.
We refer to those persons who have securities registered in their own
names on the books that we or any applicable trustee, depositary, or warrant
agent maintain for this purpose as the "holders" of those securities.
These persons are the legal holders of the securities. We refer to
those persons who, indirectly through others, own beneficial interests in
securities that
are not registered in their own names as "indirect holders" of
those securities. As we discuss below, indirect holders are not legal
holders, and investors in securities issued in book-entry form or in street name
will be indirect holders.
Book-Entry Holders
See also the
section entitled "DESCRIPTION OF DEBT SECURITIES — Form, Transfer and Exchange"
above for additional discussion of book entry and certificated form of ownership
as such forms of ownership impact the rights and obligations of purchasers of
debt securities to be issued under this prospectus.
Book-Entry Holders
We may issue
securities in whole or in part in book-entry form, as we will specify in the
applicable prospectus supplement. Book-entry form means securities
may be represented by one or more global securities registered in the name of a
financial institution that holds them as depositary on behalf of other financial
institutions that participate in the depositary's book-entry system. These
participating institutions, which are referred to as participants, in turn, hold
beneficial interests in the securities on behalf of themselves or their
customers. Upon the issuance of a global security, the depositary will credit,
on its book-entry registration and transfer system, the participants' accounts
with the respective principal amounts of the book-entry securities represented
by the global security beneficially owned by such participants. The
accounts to be credited will be designated by any dealers, underwriters or
agents participating in the distribution of the book-entry securities.
Ownership of book-entry securities will be shown on, and the transfer of the
ownership interests will be effected only through, records maintained by the
depositary for the related global security (with respect to interests of
participants) and on the records of participants (with respect to interests
of
persons holding through participants). The laws of some states may require
that certain purchasers of securities take physical delivery of such securities
in definitive form. These laws may impair the ability to own, transfer or
pledge beneficial interests in book-entry securities.
Only the
person in whose name a security is registered is recognized as the holder of
that security. Securities issued in global form will be registered in the
name of the depositary or its participants. Consequently, for securities
issued in global form, we will recognize only the depositary as the holder of
the securities, and we will make all payments on the securities to the
depositary. The depositary passes along the payments it receives to its
participants, which in turn pass the payments along to their customers who are
the beneficial owners. The depositary and its participants do so under
agreements they have made with one another or with their customers; they are not
obligated to do so under the terms of the securities.
As
a result, investors in a book-entry security will not own securities directly.
Instead, they will own beneficial interests in a global security, through
a bank, broker or other financial institution that participates in the
depositary's book-entry system or holds an interest through a
participant. As long as the securities are issued in global form,
investors will be indirect holders, not holders, of the
securities.
Street
Name Holders
We may
terminate a global security or issue securities in non-global form. In
these cases, investors may choose to hold their securities in their own names or
in "street name." Securities held by an investor in street name would
be registered in the name of a bank, broker or other financial institution that
the investor chooses, and the investor would hold only a beneficial interest in
those securities through an account he, she or it maintains at that
institution.
For
securities held in street name, we will recognize only the intermediary banks,
brokers and other financial institutions in whose names the securities are
registered as the holders of those securities, and we will make all payments on
those securities to them. These institutions pass along the payments they
receive to their customers who are the beneficial owners, but only because they
agree to do so in their customer agreements or because they are legally required
to do so. Investors who hold securities in street name will be indirect
holders, not holders, of those securities.
Legal
Holders
Our
obligations, as well as the obligations of any applicable trustee and of any
third parties employed by us or a trustee, run only to the legal holders of the
securities. We do not have obligations to investors who hold beneficial
interests in global securities, in street name or by any other indirect means.
This will be the case whether an investor chooses to be an indirect holder
of a security or has no choice because we are issuing the securities only in
global form.
For example,
once we make a payment or give a notice to the holder, we have no further
responsibility for the payment or notice even if that holder is required, under
agreements with depositary participants or customers or by law, to pass it along
to the indirect holders but does not do so. Whether and how the holders
contact the indirect holders is up to the holders.
Special
Considerations For Indirect Holders
If you hold
securities through a bank, broker or other financial institution, either in
book-entry form or in street name, you should check with your own institution to
determine the following:
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how
it handles securities payments and notices;
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whether
it imposes fees or charges;
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how
it would handle a request for the holders' consent, if ever
required;
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whether
and how you can instruct it to send you securities registered in your own
name so you can be a holder, if that is permitted in the
future;
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how
it would exercise rights under the securities if there were a default or
other event triggering the need for holders to act to protect their
interests; and
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if
the securities are in book-entry form, how the depositary's rules and
procedures will affect these
matters.
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Global
Securities
A global
security is a security that represents one or any other number of individual
securities held by a depositary. Generally, all securities represented by
the same global securities will have the same terms. Each security issued
in book-entry form will be represented by a global security that we deposit with
and register in the name of a financial institution or its nominee that we
select. The financial institution that we select for this purpose is
called the depositary. Unless we specify otherwise in the applicable
prospectus supplement, DTC will be the depositary for all securities issued in
book-entry form.
A global
security may not be transferred to or registered in the name of anyone other
than the depositary, its nominee or a successor depositary, unless special
termination situations arise. We describe those situations below under
"Special Situations When a Global Security Will Be Terminated." As a
result of these arrangements, the
depositary, or its nominee, will be the sole registered owner and holder of all
securities represented by a global security, and investors will be permitted to
own only beneficial interests in a global security. Beneficial interests
must be held by means of an account with a broker, bank or other financial
institution that in turn has an account with the depositary or with another
institution that does. Thus, an investor whose security is represented by
a global security will not be a holder of the security, but only an indirect
holder of a beneficial interest in the global security.
If the
prospectus supplement for a particular security indicates that the security will
be issued in global form only, then the security will be represented by a global
security at all times unless and until the global security is terminated.
If termination occurs, we may issue the securities through another
book-entry clearing system or decide that the securities may no longer be held
through any book-entry clearing system.
We may, at
any time and in our sole discretion, determine not to have any of the book-entry
securities of any series represented by one or more global securities and, in
that event, we will issue certificated securities in exchange for the global
securities of that series.
Special
Considerations For Global Securities
The rights of
an indirect holder relating to a global security will be governed by the account
rules of the investor's financial institution and of the depositary, as well as
general laws relating to securities transfers. We do not recognize an
indirect holder as a holder of securities and instead deal only with the
depositary that holds the global security.
If securities
are issued only in the form of a global security, an investor should be aware of
the following:
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an
investor cannot cause the securities to be registered in his, her or its
name, and cannot obtain non-global certificates for his, her or its
interest in the securities, except in the special situations we describe
below;
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an
investor will be an indirect holder and must look to his, her or its own
bank or broker for payments on the securities and protection of his, her
or its legal rights relating to the securities, as we describe
above;
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an
investor may not be able to sell interests in the securities to some
insurance companies and to other institutions that are required by law to
own their securities in non-book-entry form;
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an
investor may not be able to pledge his, her or its interest in a global
security in circumstances where certificates representing the securities
must be delivered to the lender or other beneficiary of the pledge in
order for the pledge to be effective;
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the
depositary's policies, which may change from time to time, will govern
payments, transfers, exchanges and other matters relating to an investor's
interest in a global security;
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we
and any applicable trustee have no responsibility for any aspect of the
depositary's actions or for its records of ownership interests in a global
security, nor do we or any applicable trustee supervise the depositary in
any way;
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the
depositary may, and we understand that DTC will, require that those who
purchase and sell interests in a global security within its book-entry
system use immediately available funds, and your broker or bank may
require you to do so as well; and
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financial
institutions that participate in the depositary's book-entry system, and
through which an investor holds its interest in a global security, may
also have their own policies affecting payments, notices and other matters
relating to the securities.
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There may be
more than one financial intermediary in the chain of ownership for an investor.
We do not monitor and are not responsible for the actions of any of those
intermediaries.
Special
Situations When a Global Security Will Be Terminated
In a few
special situations described below, the global security will terminate and
interests in it will be exchanged for physical certificates representing those
interests. After that exchange, the choice of whether to hold securities
directly or in street name will be up to the investor. Investors must
consult their own banks or brokers to find out
how to have their interests in securities transferred to their own name, so that
they will be direct holders. We have described the rights of holders and
street name investors above.
Unless we
provide otherwise in the applicable prospectus supplement, the global security
will terminate when the following special situations occur:
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if
the depositary notifies us that it is unwilling, unable or no longer
qualified under the Exchange Act to continue as depositary for that global
security and we do not appoint another institution to act as depositary
within 90 days;
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if
we notify any applicable trustee that we wish to terminate that global
security; or
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if
an event of default has occurred with regard to securities represented by
that global security and has not been cured or
waived.
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The
prospectus supplement may also list additional situations for terminating a
global security that would apply only to the particular types and series of
securities covered by the applicable prospectus supplement. When a global
security terminates, the depositary, and not we or any applicable trustee, is
responsible for deciding the names of the institutions that will be the initial
direct holders.
CERTAIN
PROVISIONS OF IOWA LAW AND
THE
CORPORATION'S ARTICLES OF INCORPORATION AND BY-LAWS
The following
paragraphs summarize certain provisions of Iowa law and our articles of
incorporation and by-laws, as amended. For a complete
description of the various provisions of our articles of incorporation
and by -laws summarized below, please reference our articles of
incorporation and by-laws, copies of which are on file with the SEC as exhibits
to reports previously filed by us and included as exhibits to the
registration statement. See "WHERE YOU CAN FIND MORE INFORMATION"
above.
General
Certain provisions
of our articles of incorporation and by-laws, as amended, and Iowa law could
make our acquisition by a third party, a change in our incumbent management or a
similar change in control more difficult, including:
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an
acquisition of us by means of a tender or exchange
offer;
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an
acquisition of us by means of a proxy contest or
otherwise; or
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the
removal of a majority or all of our incumbent officers and
directors.
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These
provisions, which are summarized below, are likely to discourage certain types
of coercive takeover practices and inadequate takeover bids. These
provisions are also designed to encourage persons seeking to acquire control of
us to first negotiate with our board of directors. We believe that these
provisions help to protect our potential ability to negotiate with the proponent
of an unfriendly or unsolicited proposal to acquire or restructure us, and that
this benefit outweighs the potential disadvantages of discouraging such a
proposal because our ability to negotiate with the proponent could result in an
improvement of the terms of the proposal. The existence of these
provisions which are described below could limit
the price that
investors might otherwise pay in the future for our securities. This
description is intended as a summary only and is qualified in its entirety by
reference to our articles of incorporation and by-laws.
Articles
of Incorporation, By-laws and Iowa Law
Authorized
But Unissued Capital Stock
We have
shares of common stock and preferred stock available for future issuance without
shareholder approval, subject to any limitations imposed by the listing
standards of the NYSE. We may utilize these additional shares for a
variety of corporate purposes, including for future public offerings to raise
additional capital or facilitate corporate acquisitions or for payment as a
dividend on our capital stock. The existence of unissued and unreserved
common stock and preferred stock may enable our board of directors to issue
shares to persons friendly to current management or to issue preferred stock
with terms that could have the effect of making it more difficult for a third
party to
acquire, or could discourage a third party from seeking to acquire, a
controlling interest in the Corporation by means of a merger, tender offer,
proxy contest or otherwise. In addition, if we issue preferred stock, the
issuance could adversely affect the likelihood that such holders will receive
dividend payments and payments upon liquidation.
Blank
Check Preferred Stock
Our board of
directors, without shareholder approval, has the authority under our articles of
incorporation, as amended, to issue preferred stock with rights superior to the
rights of the holders of common stock. As a result, preferred stock could
be issued quickly and easily, could impair the rights of holders of common stock
and could be issued with terms calculated to delay or prevent a change in
control or make removal of management more difficult.
Number
of Directors; Removal; Filling Vacancies
Our articles
of incorporation, as amended, provide that the number of directors shall be
fixed by the by-laws, as amended, which our board of directors can amend without
shareholder approval. Our by-laws default to Iowa law with respect to
the removal of directors. Iowa law provides that directors may be
removed with or without cause where the votes cast by shareholders favoring the
action exceed the votes cast by shareholders opposing the
action at a shareholder's
meeting at which a quorum is present where one of the purposes of the meeting is
to remove one or more directors. A director cannot be removed by
written consent of shareholders unless written consents are obtained from the
holders of all the outstanding shares entitled to vote on the removal of the
director. Our by-laws provide that vacancies on our board of
directors may be filled by a majority vote of the remaining directors, even
though less than a quorum. Iowa law also provides that shareholders may
fill any vacancy on our board of directors.
Shareholder
Action
Iowa law
provides that shareholders may act outside of a meeting if one or more written
consents describing the action taken are signed by the holders of outstanding
shares having not less than ninety percent (90%) of the votes entitled to be
cast at a meeting at which all shares entitled to vote on the action were
present and voted.
Shareholder
Meetings
Our by-laws,
as amended, provide that shareholders can only call a special meeting with the
approval of holders of not less than fifty percent (50%) of all votes entitled
to be cast on any issue proposed to be considered at the proposed special
meeting. Our by-laws also provide that the business of special
meetings of shareholders shall be confined to the purposes stated in the notice
of the meeting. These provisions may discourage another person or
entity from making a tender offer, unless it acquired a majority of our
outstanding voting stock, because the person or entity could only take action at
a duly called shareholders' meeting relating to the business specified in the
notice of meeting and not by written consent.
Requirements
for Advance Notification of Shareholder Nominations and Proposals
Our by-laws,
as amended, provide that a shareholder seeking to bring business before an
annual meeting of shareholders, or to nominate candidates for election as
directors at an annual meeting of shareholders, must provide timely notice of
this intention in writing. To be timely, a shareholder must deliver
the notice in writing to our Corporate Secretary at our principal executive
offices not less than 60 and nor more than 90 days prior to the first
anniversary of the preceding year's annual meeting, subject to certain
exceptions. Our by-laws also specify requirements as to the form and
content of the shareholder's notice. These provisions could delay
shareholder actions that are favored by the holders of a majority of our
outstanding shares until the next shareholders' meeting.
Classified
Board of Directors
Our board of
directors is divided into three classes, as nearly equal in number as is
reasonably possible, serving staggered terms. One class of directors
is elected at each annual meeting to serve a term of three
years. Amendments to the staggered board provisions require that the
votes cast by shareholders favoring the action exceed the votes cast by
shareholders opposing the action at a shareholders' meeting at which a quorum is
present. The effect of a classified board of directors may be to make
it more difficult to acquire control of the Corporation.
Iowa
Business Combination Statute
We are
subject to the provisions of Section 490.1110 of the Iowa Business
Corporation Act (the "Business Combination Statute"). Under the
Business Combination Statute, certain "business combinations" between an
Iowa corporation whose stock is publicly traded or held by more than 2,000
shareholders and an "interested shareholder" are prohibited for a three-year
period following the date that such a shareholder became an interested
shareholder, unless: (i) prior to the time the shareholder
became an interested shareholder, the board of directors of the corporation
approved either the business combination or the transaction which resulted
in the shareholder becoming an interested shareholder; (ii) at or
subsequent to the time the shareholder became an interested shareholder,
the business combination is approved by the board of directors and
authorized at an annual or special meeting of shareholders (such approval
shall not be by written consent) by the affirmative vote of at
least sixty-six and two-thirds percent (66-2/3%) of the outstanding voting
stock which is not owned by the interested shareholder; or (iii) upon
consummation of the transaction that made it an interested shareholder, the
interested shareholder owned at least 85% of the voting stock of the corporation
outstanding at the commencement of the transaction (excluding voting stock
owned by directors who are also officers or held in employee benefit plans
in which the employees do not have a confidential right to tender or vote
stock held by the plan). The three-year prohibition also does not
apply to certain business combinations proposed by an interested
shareholder following the announcement or notification
of certain extraordinary
transactions involving the corporation and a person who had not been an
interested shareholder during the previous three years. The term
"business combination" is defined generally to include mergers or
consolidations between an Iowa corporation and an "interested shareholder,"
transactions with an "interested shareholder" involving the assets or stock
of the corporation or its majority-owned subsidiaries and transactions
which increase an interested shareholder's percentage ownership of stock.
The term "interested shareholder" is defined generally as
a shareholder who, together with affiliates and associates, owns (or,
within three years prior, did own) 10% or more of an Iowa corporation's
voting stock.
Limitation
of Liability and Indemnification
Iowa law
authorizes an Iowa corporation to limit the personal liability of directors to
the corporation or its shareholders for money damages for certain actions or
failures to act in their capacity as a director and to indemnify a director or
officer against certain liabilities. We believe that such provisions,
together with provisions limiting the personal liability of officers to the
Corporation or its shareholders, are beneficial in attracting and retaining
qualified directors and officers. Accordingly, our articles of
incorporation, as amended, provide that no director shall be personally liable
to the Corporation or any shareholder for money damages for any action, or
failure to take action, except for:
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the
amount of financial benefit received by a director to which the director
is not entitled;
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an
intentional infliction of harm on the Corporation or its
shareholders;
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a
violation of Section 490.833 (Liability for unlawful distribution) of the
Iowa Business Corporation Act; or
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an
intentional violation of criminal
law.
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In addition, our
by-laws, as amended, provide that:
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no
officer shall be liable as an officer to the Corporation or its
shareholders for any decision to take or not to take action, or any
failure to take any action, if the duties of the officer are performed in
compliance with the standards of conduct for officers prescribed in Iowa
law; and
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we
may indemnify a director or officer to the maximum extent permitted by
Iowa law.
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We may sell
the securities described in this prospectus from time to time in one or more of
the following ways:
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to
or through underwriters or dealers;
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directly
to one or more purchasers;
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through
agents; or
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through
a combination of any of those methods of
sale.
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The prospectus
supplement with respect to the offered securities will describe the terms of the
offering, including the following:
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the
name or names of any underwriters or agents;
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any
public offering price;
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the
proceeds from such sale;
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any
underwriting discounts or agency fees and other items constituting
underwriters' or agents' compensation;
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any
over-allotment options under which underwriters may purchase additional
securities from us;
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any
discounts or concessions allowed or reallowed or paid to
dealers; and
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any
securities exchanges on which the securities may be
listed.
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We may distribute
the securities from time to time in one or more of the following
ways:
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at
a fixed public offering price or prices, which may be
changed;
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at
prices relating to prevailing market prices at the time of
sale;
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at
varying prices determined at the time of
sale; or
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at
negotiated prices.
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Unless otherwise
indicated in the applicable prospectus supplement, if we use underwriters for a
sale of securities, the underwriters will acquire the securities for their own
count. The underwriters may resell the securities in one or more
transactions, including negotiated transactions, at a fixed public offering
price, or at varying prices determined at the time of sale. The
obligations of the underwriters to purchase the securities will be subject to
the conditions set forth in the applicable underwriting agreement. Unless
otherwise indicated in a prospectus supplement, the underwriters will be
obligated to purchase all the securities of the series offered if they purchase
any of the securities of that series. We may change from time to time any
initial public offering price and any discounts or concessions the underwriters
allow or reallow or pay to dealers. We may use underwriters with whom we
have a material relationship. We will describe in the prospectus
supplement naming the underwriter the nature of any such relationship. We
may designate agents who agree to use their reasonable efforts to solicit
purchases for the period of their appointment or to sell securities on a
continuing basis. We may also sell securities directly to one or more
purchasers without using underwriters or agents.
Underwriters, dealers
or agents may receive compensation in the form of discounts, concessions or
commissions from us or from purchasers of the securities as their agents in
connection with the sale of the securities. These underwriters,
dealers or agents may be considered to be underwriters under the Securities Act.
As a result, discounts, commissions or profits on resale received by
underwriters, dealers or agents may be treated as underwriting discounts and
commissions. Each prospectus supplement will identify any underwriter,
dealer or agent and describe any compensation received by them from us.
Any initial public offering price and any discounts or concessions allowed
or reallowed or paid to dealers may be changed from time to time.
Unless
otherwise specified in the applicable prospectus supplement, each class or
series of securities will be a new issue with no established trading market,
other than our common stock, which is listed on the NYSE. We may
elect to list any other class or series of securities on any exchange, but we
are not obligated to do so. It is possible that one or more underwriters
may make a market in a class or series of securities, but the underwriters will
not be obligated to do so and may discontinue any market making at any time
without notice. We cannot give any assurance as to the liquidity of the
trading market for any of the securities.
In connection
with any offering, the underwriters may engage in stabilizing transactions,
over-allotment transactions, syndicate covering transactions and penalty bids in
accordance with Regulation M under the Exchange Act.
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Stabilizing
transactions permit bids to purchase the underlying security so long as
the stabilizing bids do not exceed a specified maximum.
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Over-allotment
involves sales by the underwriters of shares of our common stock in excess
of the number of shares the underwriters are obligated to purchase, which
creates a syndicate short position. The short position may be either
a covered short position or a naked short position. In a covered
short position, the number of shares of our common stock over-allotted by
the underwriters is not greater than the number of shares that they may
purchase in the over-allotment option. In a naked short position,
the number of shares of our common stock involved is greater than the
number of shares in the over-allotment option. The underwriters
may close out any covered short position by either exercising their
over-allotment option or purchasing shares of our common stock in the open
market.
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Syndicate
covering transactions involve purchases of our common stock in the open
market after the distribution has been completed in order to cover
syndicate short positions. In determining the source of shares to
close out the short position, the underwriters will consider, among other
things, the price of shares of our common stock available for purchase in
the open market as compared to the price at which they may purchase shares
through the over-allotment option so that if there is a naked short
position, the position can only be closed out by buying shares in the open
market. A naked short position is more likely to be created if the
underwriters are concerned that there could be downward pressure on the
price of the shares of our common stock in the open market after the
pricing of any offering that could adversely affect investors who purchase
in that offering.
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Penalty
bids permit the representatives of the underwriters to reclaim a selling
concession from a syndicate member when the common stock originally sold
by the syndicate member is purchased in a stabilizing or syndicate
covering transaction to cover syndicate short
positions.
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These stabilizing
transactions, syndicate covering transactions and penalty bids may have the
effect of raising or maintaining the market price of our common stock or
preventing or retarding a decline in the market price of our common stock.
As a result, the price of our common stock may be higher than the price that
might otherwise exist in the open market. These transactions may be
effected on the NYSE or otherwise and, if commenced, may be discontinued at any
time.
Underwriters,
dealers and agents may be entitled under agreements entered into with us to
indemnification against certain civil liabilities, including liabilities under
the Securities Act, or to contribution with respect to payments they may be
required to make in respect of these liabilities
thereof. Underwriters, dealers, agents and their affiliates may be
customers of, may engage in transactions with or perform services for us in the
ordinary course of business for which they receive compensation.
The validity
of the securities offered hereby will be passed upon by Squire, Sanders &
Dempsey L.L.P., Two Renaissance Square, 40 North Central Avenue, Phoenix, AZ
85004-4498. Certain legal matters may be passed upon for
any agents or underwriters by counsel for such agents or underwriters identified
in the applicable prospectus supplement.
The financial
statements and management's assessment of the effectiveness of internal control
over financial reporting (which is included in Management's Report on Internal
Control over Financial Reporting) incorporated in this prospectus by reference
to our Annual Report on Form 10-K for the year ended January 3, 2009 have been
so incorporated in reliance on the reports of
PricewaterhouseCoopers LLP, an independent registered public accounting firm,
given on the authority of said firm as experts in auditing and
accounting.
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
The
following table sets forth the estimated fees and expenses, other than
underwriting discounts and other fees and expenses associated with offerings of
particular securities, in connection with the issuance and distribution of the
securities being registered. All of the amounts shown are estimates,
except for the SEC registration fee:
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Description
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Amount to be Paid ($)
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SEC
Registration Fee
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$ | 9,825 | ||
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Accountants'
Fees and Expenses
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$ | 20,000 | ||
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Legal
Fees and Expenses
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$ | 35,000 | ||
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Printing
and Engraving Expenses
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$ | 25,000 | ||
| Transfer Agent Fees | * | |||
| Trustee Fees and Expenses | * | |||
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Miscellaneous Fees
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$ | 10,000 | ||
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Total
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$ | 99,825 | ||
*Not currently
determinable--such fees will not be determinable until such time as HNI
Corporation (the "Corporation") approves the issuance of securities and
determines the type and amount of securities to be issued.
Item
15. Indemnification of Directors and Officers.
HNI
Corporation
As
permitted by the Iowa Business Corporation Act (the "IBCA"), the Articles of
Incorporation of HNI Corporation (the "HNI Articles") provide that no director
shall be personally liable to the Corporation or any shareholder for money
damages for any action, or failure to take action, except for: (i) the
amount of financial benefit received by a director to which the director is not
entitled; (ii) an intentional infliction of harm on the Corporation or its
shareholders; (iii) a violation of Section 490.833 of the IBCA; or (iv) an
intentional violation of criminal law. While the HNI Articles provide
protection from awards for monetary damages for breaches of the duty of care,
they do not eliminate the director's duty of care. Accordingly, the HNI Articles
will not affect the availability of equitable remedies, such as an injunction,
based on a director's breach of the duty of care.
In
addition, the By-laws of HNI Corporation (the "HNI By-laws") provide that:
(i) an officer of the Corporation will not be liable as an officer to the
Corporation or its shareholders for any decision to take or not to take
action, or any failure to take any action, if the duties of the officer are
performed in compliance with the standards of conduct for officers prescribed in
the IBCA; and (ii) that the Corporation may indemnify a director or officer of
the Corporation who is a party to a proceeding against liability incurred by
such director or officer in the proceeding to the maximum extent permitted by
and in the manner prescribed by the IBCA, including the advancement of
expenses.
The HNI
By-laws further provide that the Corporation may enter into indemnification
agreements consistent with the IBCA with each director of the Corporation and
with such officers of the Corporation as the Board of Directors of the
Corporation deems appropriate. The Corporation has entered into agreements
with its directors and with certain officers agreeing to indemnify them against
certain liabilities to the fullest extent permitted under Iowa law, the HNI
Articles and the HNI By-laws. The Corporation also has director and
officer liability insurance in the amount of $70,000,000, under which each
director and each of certain officers of the Corporation is insured against
certain liabilities.
Illinois
Corporate Guarantor
As
permitted by the Illinois Business Corporation Act (the "Illinois Act"), the
Articles of Incorporation of Allsteel Inc. (the "Allsteel Articles"), an
Illinois corporation ("Allsteel"), provide that no director shall be personally
liable to Allsteel or any shareholder except for: (i) any breach of
the director’s duty of loyalty to Allsteel or its
shareholders; (ii) acts or omissions not in good faith or that
involve intentional misconduct or a knowing violation of law; (iii) any
transaction from which the director derived an improper
personal benefit; or (iv) acts prohibited by Section 8.65 of the Illinois
Act. In addition, the By-laws of Allsteel Inc. (the "Allsteel
By-laws") provide that the liability of directors shall be limited or removed to
the maximum extent allowed or provided either by the Allsteel Articles or by
applicable law.
In
accordance with the Illinois Act, the Allsteel By-laws provide that no officer
shall be personally liable to Allsteel or any shareholder except
for: (i) any breach of the officer’s duty of loyalty to Allsteel or
its shareholders; (ii) acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law; or (iii) any transaction
from which the officer derived an improper personal benefit.
The
Illinois Act permits Allsteel to indemnify its directors and officers against
certain litigation and settlement expenses, and the Allsteel Articles provide
that the Allsteel By-laws may contain provisions for indemnification and
advancement of expenses for directors and officers. The Allsteel
By-laws provide for indemnification of directors and officers by any of the
following methods: (i) in the manner and to the extent provided by
the Illinois Act; (ii) upon a determination of the Allsteel Board of Directors
(the "Allsteel Board") that the director or officer acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best
interests of Allsteel; (iii) in accordance with any agreement authorized by the
Allsteel Board before commencement of the action; (iv) if and to the extent
authorized by the shareholders; and (v) in any other manner not prohibited by
Illinois law; provided however that Allsteel’s directors and officers may not be
indemnified against: (a) a breach of the duty of loyalty to Allsteel;
(b) acts or omissions not in good faith or that involve intentional misconduct
or a knowing violation of the law; (c) a transaction from which the officer or
director derives an improper personal benefit; or (d) acts prohibited under
Section 8.65 of the Illinois Act.
Iowa
Corporate Guarantors
The
articles of incorporation and by-laws of each of Hearth & Home Technologies
Inc., Maxon Furniture Inc., Paoli Inc. and The HON Company, all Iowa
corporations, contain provisions limiting the liability and providing for the
indemnification of directors and officers virtually identical to the director
and officer limitation of liability and indemnification provisions contained in
the HNI Articles and the HNI By-laws discussed above.
North
Carolina Limited Liability Company Guarantor
As
permitted by the North Carolina Limited Liability Company Act (the "North
Carolina Act"), the Articles of Organization of Hickory Business Furniture, LLC
(the "HBF Articles"), a North Carolina limited liability company ("HBF"),
provide that no person who is serving or who has served as a manager of HBF
shall be personally liable to HBF or any of its members for monetary damages for
breach of duty as a manager, except for liability with respect
to: (i) acts or omissions that the manager at the time of such breach
knew were clearly in conflict with the best interests of HBF; (ii) any
transaction from which the manager derived an improper personal benefit; (iii)
acts or omissions occurring prior to the effective date of the HBF Articles; or
(iv) acts or omissions with respect to which the North Carolina Act does not
permit the limitation of liability.
In
accordance with the North Carolina Act, the Amended and Restated Operating
Agreement of Hickory Business Furniture, LLC provides that HBF shall indemnify
Allsteel, its sole member, or its authorized delegatee(s) in connection with
their services as a manager or officer of HBF to the fullest extent permitted or
required by the North Carolina Act, and HBF may advance expenses incurred by
such person upon the approval of Allsteel.
In
addition, per the terms of the North Carolina Act: (i) a person who
is a member, manager, director, executive or any combination thereof of HBF is
not liable for the obligations of HBF solely by reason of being a member,
manager, director or executive and does not become so by participating, in
whatever capacity, in the management or control of HBF; (ii) a member of HBF is
not a proper party to proceedings by or against HBF; (iii) HBF must indemnify
every manager, director and executive in respect of payments made and personal
liabilities reasonably
incurred by the manager, director or executive in the authorized conduct of
HBF’s business or for the preservation of HBF’s business or property; and (iv)
HBF shall indemnify a member, manager, director or executive who is wholly
successful, on the merits or otherwise, in the defense of any proceeding to
which the person was a party because the person is or was a member, manager,
director or executive of HBF against reasonable expenses incurred by the person
in connection with the proceeding.
Iowa
Limited Liability Company Guarantor
As
permitted by the Iowa Limited Liability Company Act (the "ILLCA"), the Articles
of Organization of The Gunlocke Company L.L.C. (the "Gunlocke Articles"), an
Iowa limited liability company ("Gunlocke"), provide that managers of Gunlocke
shall not be liable to Gunlocke or its members for monetary damages for breach
of fiduciary duty as a manager, except for liability with respect
to: (i) breach of the manager’s duty of loyalty to Gunlocke or its
members; (ii) acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law; and (iii) transactions from which the
manager derives an improper personal benefit or a wrongful distribution in
violation of Section 490A.807 of the ILLCA. The ILLCA also prevents
Gunlocke from limiting the liability of its managers to Gunlocke or its members
for acts or omissions occurring prior to the effective date of the Gunlocke
Articles.
In
addition, the Operating Agreement of The Gunlocke Company L.L.C. (the "Gunlocke
Operating Agreement") provides that: (i) neither any manager nor any
of his or her affiliates shall be liable to Gunlocke or any member for any act
or omission based upon errors of judgment or other fault in connection with the
business or affairs of Gunlocke if the manager, or such affiliate, determined
that such course of conduct was in the best interest of Gunlocke; and (ii) to
the fullest extent permitted by law, the manager shall be indemnified and held
harmless by Gunlocke from and against any and all losses, claims, damages,
settlements and other amounts arising from any and all claims in which he or she
may be involved, as a party or otherwise, by reason of his or her management of
the affairs of Gunlocke; provided that no manager shall be entitled to
indemnification if a court of competent jurisdiction shall have determined that
such losses, claims, damages, liabilities, expenses or such other amounts
resulted primarily from the gross negligence or willful misconduct of such
manager.
Per the
terms of the ILLCA: (i) no member or manager of Gunlocke is
personally liable for the acts or debts of Gunlocke; (ii) a member of Gunlocke
is not a proper party to proceedings by or against Gunlocke; (iii) a member or
manager of Gunlocke is not personally liable solely by reason of being a member
or manager of Gunlocke under any judgment, or in any other manner, for any debt,
obligation or liability of Gunlocke, whether that liability or obligation arises
in contract, tort or otherwise; and (iv) a manager is not liable for any action
taken as a manager or any failure to take any action, if the manager performed
the duties of the manager's office in compliance with Section 490A.706 of the
ILLCA, or if, and to the extent that, liability for any such action or failure
to act has been limited by the articles of organization pursuant to Section
490A.707 of the ILLCA.
Item
16. Exhibits.
|
Exhibit
|
Description
|
|
1.1*
|
Form
of Underwriting Agreement
|
|
3.1
|
Articles of Incorporation of Allsteel Inc. |
|
3.2
|
By-laws of Allsteel Inc. |
|
3.3
|
Articles of Incorporation of Hearth & Home Technologies Inc. |
|
3.4
|
By-laws of Hearth & Home Technologies Inc. |
|
3.5
|
Articles of Organization of Hickory Business Furniture, LLC |
|
3.6
|
Amended and Restated Operating Agreement of Hickory Business Furniture, LLC |
|
3.7
|
Articles of Incorporation of Maxon Furniture Inc. |
|
3.8
|
By-laws of Maxon Furniture Inc. |
|
3.9
|
Articles of Incorporation of Paoli Inc. |
|
3.10
|
By-laws of Paoli Inc. |
|
3.11
|
Restated Articles of Organization of The Gunlocke Company L.L.C. |
|
3.12
|
Amended and Restated Operating Agreement of The Gunlocke Company L.L.C. |
|
3.13
|
Articles of Incorporation of The HON Company |
|
3.14
|
By-laws of The HON Company |
|
4.1
|
Articles
of Incorporation of HNI Corporation, as amended, incorporated by reference
to Exhibit 3(i) to the Corporation's Current Report on Form 8-K
filed with the SEC on May 8, 2007
|
|
4.2
|
By-laws
of HNI Corporation, as amended, incorporated by reference to Exhibit 3(ii)
to the Corporation's Current Report on Form 8-K filed with the SEC on
November 12, 2008
|
|
4.3*
|
Form
of Common Stock
Certificate
|
|
Exhibit
|
Description |
|
4.4*
|
Specimen
Certificate of Preferred Stock
|
|
4.5*
|
Form
of Warrant Agreement and
Certificate
|
|
4.6
|
Form
of Indenture relating to Senior, Senior Subordinated and Subordinated Debt
Securities , incorporated by reference to Exhibit 4.6 to Amendment No. 1
to the Corporation's Registration Statement on Form S-3 filed with the SEC
on April 28, 2009
|
|
4.7*
|
Form
of Depositary Receipt for Depositary Shares
|
|
4.8*
|
Form
of Deposit Agreement for Depositary Shares
|
|
4.9*
|
Form
of Purchase Contract
|
|
4.10*
|
Form
of Unit Agreement and Unit Certificate
|
|
4.11*
|
Form
of Senior Debt Security
|
|
4.12*
|
Form of Senior Subordinated Debt Security |
|
4.13*
|
Form of Subordinated Debt Security |
|
4.14*
|
Form of Guarantee for Senior Debt Securities |
|
4.15*
|
Form of Guarantee for Senior Subordinated Debt Securities |
|
4.16*
|
Form of Guarantee for Subordinated Debt Securities |
|
5.1
|
Opinion
of counsel regarding legality of shares
|
|
12.1*
|
Statement
of Computation of Ratio of Earnings to Fixed Charges
|
|
23.1
|
Consent
of counsel (included in Exhibit 5.1 hereto)
|
|
23.2
|
Consent
of PricewaterhouseCoopers LLP
|
|
24.1
|
Power
of attorney , incorporated by reference to Exhibit 24.1 to Amendment No.
1 to the Corporation's Registration Statement on Form S-3 filed with the
SEC on April 28, 2009
|
|
25.1*
|
Statement
of Eligibility on Form T-1 under the Trust Indenture Act of 1939
of the Trustee under the Indenture
|
|
* To be filed by amendment to this
registration statement or by a report filed under the Securities Exchange
Act of 1934, as amended, and incorporated herein by
reference.
|
|
Item
17. Undertakings.
(a) The
undersigned registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To
include any prospectus required by Section 10(a)(3) of the Securities Act of
1933;
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in
the volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the
low or high end of the estimated maximum offering range may be reflected in the
form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than 20 percent
change in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement;
Provided,
however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this
section do not apply if the registration statement is on Form S-3 or Form F-3
and the information required to be included in a post-effective amendment by
those paragraphs is contained in reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement, or is contained in a
form of prospectus filed pursuant to Rule 424(b) that is part of the
registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(4) That,
for the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
(i) If
the registrant is relying on Rule 430B:
(A) Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be
deemed to be part of the registration statement as of the date the filed
prospectus was deemed part of and included in the registration
statement; and
(B) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or
(b)(7) as part of a registration statement in reliance on Rule 430B
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or
(x) for the purpose of providing the information required by
Section 10(a) of the Securities
Act of 1933 shall be deemed to be part of and included in the registration
statement as of the earlier of the date such form of prospectus is first used
after effectiveness or the date of the first contract of sale of securities in
the offering described in the prospectus. As provided in Rule 430B,
for liability purposes of the issuer and any person that is at that date an
underwriter, such date shall be deemed to be a new effective date of the
registration statement relating to the securities in the registration statement
to which that prospectus relates, and the offering of such securities at that
time shall be deemed to be the initial bona
fide offering thereof. Provided, however, that no statement made in a
registration statement or prospectus that is part of the registration statement
or made in a document incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the registration statement
will, as to a purchaser with a time of contract of sale prior to such effective
date, supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement or made in
any such document immediately prior to such effective date.
(5) That,
for the purpose of determining liability of the registrant under the Securities
Act of 1933 to any purchaser in the initial distribution of the
securities:
The undersigned registrant undertakes
that in a primary offering of securities of the undersigned registrant pursuant
to this registration statement, regardless of the underwriting method used to
sell the securities to the purchaser, if the securities are offered or sold to
such purchaser by means of any of the following communications, the undersigned
registrant will be a seller to the purchaser and will be considered to offer or
sell such securities to such purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant relating to
the offering required to be filed pursuant to Rule 424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned
registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities provided
by or on behalf of the undersigned registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
(b) The
undersigned registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the registrant's
annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may
be permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the
registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
(d) The
undersigned registrant hereby undertakes that:
(1) For
purposes of determining any liability under the Securities Act of 1933, the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For
the purpose of determining any liability under the Securities Act of 1933, each
post-effective amendment that contains a form of prospectus shall be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona
fide offering thereof.
(e) The
undersigned registrant hereby undertakes to file an application for the purpose
of determining the eligibility of the trustee to act under subsection (a) of
Section 310 of the Trust Indenture Act of 1939 in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2) of the
Act.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that
it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-3 and has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the city of
Muscatine, State of Iowa, on June 5, 2009 .
| HNI Corporation | |||
|
|
By:
|
/s/ Steven M. Bradford | |
| Steven M. Bradford | |||
| Vice President, General Counsel and Secretary | |||
The following
direct and indirect subsidiaries of the registrant may guarantee the debt
securities and are co-registrants under this registration
statement.
Name of
Co-Registrant
Allsteel
Inc.
Hearth &
Home Technologies Inc.
Hickory
Business Furniture, LLC (1)
Maxon Furniture
Inc.
Paoli
Inc.
The Gunlocke
Company L.L.C. (1)
The HON
Company
| as Co-Registrants | |||
|
|
By:
|
/s/ Steven M. Bradford | |
| Steven M. Bradford | |||
| Vice President and Secretary of each Co-Registrant that is a corporation and Vice President and Secretary of the sole member of each Co-Registrant that is a limited liability company | |||
(1) Executed by Allsteel Inc., as sole member.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement
has been signed by the following persons in the capacities and on the date
indicated.
|
Signature
|
Title
|
Date
|
|
/s/ Stan A.
Askren
Stan
A. Askren
|
Chairman,
President and Chief Executive Officer (principal executive
officer)
|
June
5, 2009
|
|
/s/ Kurt A.
Tjaden
Kurt
A. Tjaden
|
Vice
President and Chief Financial Officer (principal financial officer and
principal accounting officer)
|
June
5, 2009
|
|
*
Mary
H. Bell
|
Director
|
June
5, 2009
|
|
*
Miguel
M. Calado
|
Director
|
June
5, 2009
|
|
*
Gary
M. Christensen
|
Director
|
June
5, 2009
|
|
*
Cheryl
A. Francis
|
Director
|
June
5, 2009
|
|
*
John
A. Halbrook
|
Director
|
June
5, 2009
|
|
*
James
R. Jenkins
|
Director
|
June
5, 2009
|
|
*
Dennis
J. Martin
|
Director
|
June
5, 2009
|
|
*
Larry
B. Porcellato
|
Director
|
June
5, 2009
|
|
*
Joseph
E. Scalzo
|
Director
|
June
5, 2009
|
|
*
Abbie
J. Smith
|
Director
|
June
5, 2009
|
|
*
Brian
E. Stern
|
Lead
Director
|
June
5, 2009
|
|
*
Ronald
V. Waters, III
|
Director
|
June
5, 2009
|
* Steven
M. Bradford, the undersigned attorney-in-fact, by signing his name hereto, does
hereby sign and execute this registration statement on behalf of the above
indicated directors of the registrant (constituting all of the directors)
pursuant to a Power of Attorney filed with this registration statement as
Exhibit 24.1.
| HNI Corporation | |||
|
June
5, 2009
|
By:
|
/s/ Steven M. Bradford | |
| Steven M. Bradford | |||
| Vice President, General Counsel and Secretary | |||
ON BEHALF
OF THE FOLLOWING INCORPORATED CO-REGISTRANTS:
Name
of Co-Registrant:
Allsteel
Inc.
Hearth
& Home Technologies Inc.
Maxon
Furniture Inc.
Paoli
Inc.
The HON
Company
|
Signature
|
Title
|
Date
|
|
/s/ Stan A.
Askren
Stan
A. Askren
|
Chairman
and Director (principal executive officer)
|
June
5, 2009
|
|
/s/ Marshall H.
Bridges
Marshall
H. Bridges
|
Treasurer
(principal financial officer and principal accounting
officer)
|
June
5, 2009
|
ON BEHALF
OF THE FOLLOWING LIMITED LIABILITY COMPANY CO-REGISTRANTS:
|
Name
of Co-Registrant
|
Executed
by Sole Member of Co-Registrant
|
|
Hickory
Business Furniture, LLC
|
Allsteel
Inc.
|
|
The
Gunlocke Company L.L.C.
|
Allsteel
Inc.
|
|
Signature
|
Title
|
Date
|
|
/s/ Stan A.
Askren
Stan
A. Askren
|
Chairman
and Director (principal executive officer)
|
June
5, 2009
|
|
/s/ Marshall H.
Bridges
Marshall
H. Bridges
|
Treasurer
(principal financial officer and principal accounting
officer)
|
June
5, 2009
|
EXHIBIT
INDEX
|
Exhibit
|
Description
|
|
1.1*
|
Form
of Underwriting Agreement
|
|
3.1
|
Articles of Incorporation of Allsteel Inc. |
|
3.2
|
By-laws of Allsteel Inc. |
|
3.3
|
Articles of Incorporation of Hearth & Home Technologies Inc. |
|
3.4
|
By-laws of Hearth & Home Technologies Inc. |
|
3.5
|
Articles of Organization of Hickory Business Furniture, LLC |
|
3.6
|
Amended and Restated Operating Agreement of Hickory Business Furniture, LLC |
|
3.7
|
Articles of Incorporation of Maxon Furniture Inc. |
|
3.8
|
By-laws of Maxon Furniture Inc. |
|
3.9
|
Articles of Incorporation of Paoli Inc. |
|
3.10
|
By-laws of Paoli Inc. |
|
3.11
|
Restated Articles of Organization of The Gunlocke Company L.L.C. |
|
3.12
|
Amended and Restated Operating Agreement of The Gunlocke Company L.L.C. |
|
3.13
|
Articles of Incorporation of The HON Company |
|
3.14
|
By-laws of The HON Company |
|
4.1
|
Articles
of Incorporation of HNI Corporation, as amended, incorporated by reference
to Exhibit 3(i) to the Corporation's Current Report on Form 8-K
filed with the SEC on May 8, 2007
|
|
4.2
|
By-laws
of HNI Corporation, as amended, incorporated by reference to Exhibit 3(ii)
to the Corporation's Current Report on Form 8-K filed with the SEC on
November 12, 2008
|
|
4.3*
|
Form
of Common Stock Certificate
|
|
4.4*
|
Specimen
Certificate of Preferred Stock
|
|
4.5*
|
Form
of Warrant Agreement and
Certificate
|
|
4.6
|
Form
of Indenture relating to Senior, Senior Subordinated and Subordinated Debt
Securities , incoprorated by reference to Exhibit 4.6 to Amendment No. 1
to the Corporation's Registration Statement on Form S-3 filed with the SEC
on April 28, 2009
|
|
4.7*
|
Form
of Depositary Receipt for Depositary Shares
|
|
4.8*
|
Form
of Deposit Agreement for Depositary Shares
|
|
4.9*
|
Form
of Purchase Contract
|
|
4.10*
|
Form
of Unit Agreement and Unit Certificate
|
|
4.11*
|
Form
of Senior Debt Security
|
|
4.12*
|
Form of Senior Subordinated Debt Security |
|
4.13*
|
Form of Subordinated Debt Security |
|
4.14*
|
Form of Guarantee for Senior Debt Securities |
|
4.15*
|
Form of Guarantee for Senior Subordinated Debt Securities |
|
4.16*
|
Form of Guarantee for Subordinated Debt Securities |
|
5.1
|
Opinion
of counsel regarding legality of shares
|
|
12.1*
|
Statement
of Computation of Ratio of Earnings to Fixed Charges
|
|
23.1
|
Consent
of counsel (included in Exhibit 5.1 hereto)
|
|
23.2
|
Consent
of PricewaterhouseCoopers LLP
|
|
24.1
|
Power
of attorney , incorporated by reference to Exhibit 24.1 to Amendment No.
1 to the Corporation's Registration Statement on Form S-3 filed with the
SEC on April 28, 2009
|
|
25.1*
|
Statement
of Eligibility on Form T-1 under the Trust Indenture Act of 1939
of the Trustee under the Indenture
|
|
* To be filed by amendment to this
registration statement or by a report filed under the Securities Exchange
Act of 1934, as amended, and incorporated herein by
reference.
|
|