As filed with the Securities and Exchange Commission on March 28, 2003
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
THE ESTEE LAUDER COMPANIES INC.
(Exact name of registrant as specified in its charter)
DELAWARE 11-2408943
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
767 Fifth Avenue
New York, New York 10153
(212) 572-4200
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive office)
Paul E. Konney, Esq.
Senior Vice President,
General Counsel and Secretary
The Estee Lauder Companies Inc.
767 Fifth Avenue
New York, New York 10153
(212) 572-4200
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
With a copy to:
Matthew Bloch, Esq.
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
(212) 310-8000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after the effective date of this Registration Statement as determined by
market conditions.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, as amended (the "Securities Act"), other than securities
offered only in connection with dividend or interest reinvestment plans, please
check the following box: [ X ]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
------------------------------------------------------------------------ -------------------------- --------------------------
Proposed
Maximum Amount of
Title of Each Class of Securities to be Registered Aggregate Registration
Offering Price (1) Fee (2)
------------------------------------------------------------------------ -------------------------- --------------------------
Debt Securities (3) $500,000,000 (4) $40,450 (4), (5)
======================================================================== ========================== ==========================
(1) The proposed maximum aggregate offering price per security will be
determined by us from time to time in connection with the issuance of
the securities.
(2) Calculated pursuant to Rule 457(o) under the Securities Act.
(3) Subject to note (4) below, we are registering an indeterminate
principal amount of debt securities as may be sold from time to time.
If any debt securities are issued at an original issue discount, then
the aggregate offering price will be in an aggregate principal amount
at maturity as would result in aggregate gross proceeds received by us
not to exceed $500,000,000 less the gross proceeds attributable to any
securities previously issued pursuant to this registration statement.
(4) In no event will the aggregate offering price of all securities issued
from time to time pursuant to this Registration Statement exceed
$500,000,000. The securities registered by this registration statement
may be sold separately or as units with other securities.
(5) The fee calculation is based upon $500,000,000 principal amount of our
debt securities but, pursuant to Rule 457(p), an aggregate of
$150,000,000 principal amount of those debt securities are being
carried forward from our Registration Statement on Form S-3
(Commission File No. 333-85947), filed on August 26, 1999. In
connection with Registration Statement No. 333-85947, registration
fees of $41,700 attributable to that $150,000,000 principal amount of
our debt securities were previously paid, and $40,450 of such fees are
credited against the registration fees payable in connection with this
registration statement. Accordingly, no additional amount is being
paid as a registration fee in connection with this registration
statement.
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, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
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 WE ARE NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
Subject to completion, dated March 28, 2003
PRELIMINARY PROSPECTUS
$500,000,000
[LOGO] THE ESTEE LAUDER COMPANIES INC.
DEBT SECURITIES
We intend to offer and sell from time to time, in one or more series,
debt securities in amounts, at prices and on terms to be determined by market
conditions at the time of the offering. We will not use this prospectus to sell
debt securities with an aggregate offering price of more than $500,000,000.
We will provide specific terms for the securities we offer in
supplements to this prospectus, including:
o designation;
o aggregate principal amount or aggregate initial offering
price;
o maturity;
o rate and times of payment of interest, if any; and
o other specific terms.
YOU SHOULD READ THIS PROSPECTUS AND THE RELATED SUPPLEMENTS TO THIS
PROSPECTUS CAREFULLY BEFORE YOU INVEST IN THE SECURITIES. AN INVESTMENT IN THE
SECURITIES INVOLVES RISKS. SEE "RISK FACTORS" BEGINNING ON PAGE 7.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE
SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR
DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
--------------
This prospectus may not be used to consummate sales of securities
unless accompanied by a prospectus supplement.
This prospectus is dated ___________, 2003.
TABLE OF CONTENTS
PAGE
----
About This Prospectus...................................................................................................... 3
Where You Can Find More Information........................................................................................ 3
Incorporation of Certain Documents by Reference............................................................................ 3
Forward-Looking Information................................................................................................ 5
Risk Factors................................................................................................................. 7
The Company................................................................................................................ 8
Ratio of Earnings to Fixed Charges......................................................................................... 11
Use of Proceeds............................................................................................................ 12
Selected Consolidated Financial Information................................................................................ 13
Description of the Debt Securities......................................................................................... 16
Description of Capital Stock............................................................................................... 22
Plan of Distribution....................................................................................................... 26
Legal Matters.............................................................................................................. 26
Experts .............................................................................................................. 27
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed
with the Securities and Exchange Commission (the "Commission") utilizing a
"shelf" registration process. Under this shelf registration process, we may sell
the securities described in this prospectus in one or more offerings up to a
total amount of $500,000,000. This prospectus provides you with a general
description of the securities we intend to offer. Each time we sell securities
we will provide a prospectus supplement that will contain specific information
about the terms of the offering and the securities. The prospectus supplement
may also add, update or change information contained in this prospectus. Any
statement that we make in this prospectus will be modified or superceded by any
inconsistent statement made by us in a prospectus supplement. You should read
both this prospectus and the related prospectus supplements together with
additional information described under the heading "Where You Can Find More
Information" and the information we incorporate by reference in this prospectus
described under the heading "Incorporation of Certain Documents by Reference."
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the informational requirements of the Securities
Exchange Act of 1934 (the "Exchange Act"). As a result, we file reports and
other information with the Commission. You may read and copy the reports and
other information we file with the Commission at the Commission's public
reference facilities at Room 1024, 450 Fifth Street, N.W., Judiciary Plaza,
Washington, D.C. 20549. You may obtain information on the operation of the
public reference facilities by calling the Commission at 1-800-SEC-0330. Copies
of these materials can be obtained at prescribed rates. Our filings with the
Commission are also available on the Commission's home page on the Internet at
http://www.sec.gov., as well as on our home page on the Internet at
http://www.elcompanies.com. Except for our filings with the Commission that are
incorporated by reference into this prospectus, the information on our Internet
web site is not a part of this prospectus.
We have filed with the Commission a registration statement on Form
S-3. This prospectus, which is a part of the registration statement, omits
certain information contained in the registration statement. Statements made in
this prospectus as to the contents of any contract, agreement or other document
are not necessarily complete. With respect to each contract, agreement or other
document filed as an exhibit to the registration statement, we refer you to that
exhibit for a more complete description of the matter involved, and each
statement is deemed qualified in its entirety by that reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Commission allows us to "incorporate by reference" the
information we file with the Commission. This permits us to disclose important
information to you by referencing these filed documents. We incorporate by
reference in this prospectus the following documents which have been filed with
the Commission:
(i) our Annual Report on Form 10-K for the fiscal year ended
June 30, 2002;
(ii) our Quarterly Reports on Form 10-Q for the fiscal quarters
ended September 30, 2002 and December 31, 2002; and
(iii) our Current Reports on Form 8-K dated July 2, 2002, August
15, 2002, October 1, 2002, October 29, 2002, October 30,
2002 and January 30, 2003.
We also incorporate by reference all documents filed pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
prospectus and prior to the termination of this offering.
We will promptly provide without charge to you, upon written or oral
request, a copy of any or all of the documents incorporated by reference in this
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prospectus, other than exhibits to those documents, unless the exhibits are
specifically incorporated by reference in those documents. Requests should be
directed to Investor Relations Department, The Estee Lauder Companies Inc., 767
Fifth Avenue, New York, New York 10153, telephone number (212) 572-4184.
You should consider any statement contained in a document
incorporated by reference into this prospectus to be modified or superceded to
the extent that a statement contained in this prospectus or in any prospectus
supplement or in any subsequently filed document that is also incorporated by
reference into this prospectus, modifies or conflicts with the earlier
statement. You should not consider any statement modified or superceded, except
as modified or superceded, to constitute a part of this prospectus.
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4
FORWARD-LOOKING INFORMATION
We and our representatives from time to time make written or oral
forward looking statements, including statements contained in this and other
filings with the Commission, in our press releases and in our reports to
stockholders. The words and phrases "will likely result", "expect", "believe",
"planned", "will", "will continue", "is anticipated", "estimates", "projects" or
similar expressions are intended to identify "forward-looking statements" within
the meaning of the Private Securities Litigation Reform Act of 1995. These
statements include, without limitation, our expectations regarding sales,
earnings or other future financial performance and liquidity, product
introductions, entry into new geographic regions, information systems
initiatives, new methods of sale and future operations or operating results.
Although we believe that our expectations are based on reasonable assumptions
within the bounds of our knowledge of our business and operations, actual
results may differ materially from our expectations. Factors that could cause
actual results to differ from expectations include, without limitation:
(i) increased competitive activity from companies in the
skin care, makeup, fragrance and hair care businesses, some of which
have greater resources than we do;
(ii) our ability to develop, produce and market new
products on which future operating results may depend;
(iii) consolidations, restructurings, bankruptcies and
reorganizations in the retail industry causing a decrease in the
number of stores that sell our products, an increase in the ownership
concentration within the retail industry, ownership of retailers by
our competitors and ownership of competitors by our customers that
are retailers;
(iv) shifts in the preferences of consumers as to where and
how they shop for the types of products and services we sell;
(v) social, political and economic risks to our foreign or
domestic manufacturing, distribution and retail operations, including
changes in foreign investment and trade policies and regulations of
the host countries and of the United States;
(vi) changes in the laws, regulations and policies,
including changes in accounting standards, tax laws and regulations,
trade rules and customs regulations, and the outcome and expense of
legal or regulatory proceedings, that affect, or will affect, our
business;
(vii) foreign currency fluctuations affecting our results
of operations and the value of our foreign assets, the relative
prices at which we and our foreign competitors sell products in the
same markets and our operating and manufacturing costs outside of the
United States;
(viii) changes in global or local economic conditions that
could affect consumer purchasing, the financial strength of our
customers, the cost and availability of capital, which we may need
for new equipment, facilities or acquisitions, and the assumptions
underlying our critical accounting policies and estimates;
(ix) shipment delays, depletion of inventory and increased
production costs resulting from disruptions of operations at any of
the facilities which, due to consolidations in our manufacturing
operations, now manufacture nearly all of our supply of a particular
type of product (i.e., focus factories);
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(x) real estate rates and availability, which may affect
our ability to increase the number of retail locations at which we
sell our products and the costs associated with our executive
offices;
(xi) changes in product mix to products which are less
profitable;
(xii) our ability to acquire or develop e-commerce
capabilities, and other new information and distribution
technologies, on a timely basis and within our cost estimates;
(xiii) our ability to capitalize on opportunities for
improved efficiency, such as globalization, and to integrate acquired
businesses and realize value therefrom; and
(xiv) consequences attributable to the events that are
currently taking place in Iraq and that took place in New York City
and Washington, D.C. on September 11, 2001, including further
attacks, retaliation and the threat of further attacks or
retaliation.
We assume no responsibility to update forward-looking statements made
herein or otherwise, except as required by federal securities laws.
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6
RISK FACTORS
In deciding whether to invest in the debt securities covered by this
prospectus, you should consider carefully the information contained under the
caption "Forward-Looking Information," which describes what we believe are the
principal risks we face relating to our business in general and the industry in
which we operate. We periodically review and update this information in our
filings with the Commission. Our business may also be adversely affected by
risks and uncertainties not presently known to us or that we currently believe
to be immaterial.
In addition, we believe that an investment in the securities will be
subject to the following risks:
Holders May Not Be Able to Sell the Debt Securities
We cannot predict whether an active trading market for the debt
securities will develop or be sustained. If any active market for the debt
securities fails to develop or be sustained, the trading price of the debt
securities could be adversely affected. In that case, holders may have
difficulty reselling the debt securities or may be unable to sell them at all.
If an active trading market were to develop, the debt securities' future trading
price will depend on many factors, including:
(i) prevailing interest rates;
(ii) the market for similar securities;
(iii) the credit ratings on our debt securities;
(iv) general economic conditions; and
(v) our financial condition, historical financial performance and
future prospects.
If the Debt Securities are Redeemable at Our Option, We May Choose to Redeem
Them
If stated in the applicable prospectus supplement relating to the
issuance of a series of debt securities, we may redeem such debt securities at
any time, or at a specific point in time, in accordance with that prospectus
supplement. If we choose to redeem your debt securities, you will have to
consider what you are going to do with the proceeds. If interest rates at the
time of redemption are lower, you may not be able to reinvest in a comparable
security at an effective interest rate as high as the interest rate on the debt
securities being redeemed. Before purchasing redeemable notes from us, you
should consult with a competent professional on the consequences of purchasing
redeemable notes.
You also should consider carefully any risk factors we may include,
if appropriate, in the applicable prospectus supplement.
7
THE COMPANY
The Estee Lauder Companies Inc., founded in 1946 by Estee and Joseph
Lauder, is one of the world's leading manufacturers and marketers of quality
skin care, makeup, fragrance and hair care products. Our products are sold in
over 130 countries and territories under the following well-recognized brand
names: Estee Lauder, Clinique, Aramis, Prescriptives, Origins, MoAoC, Bobbi
Brown, La Mer, jane, Aveda, Stila, Jo Malone, and Bumble and bumble. We are also
the global licensee for fragrances and cosmetics sold under the Tommy Hilfiger,
Donna Karan, and Kate Spade brands. Each brand is distinctly positioned within
the market for beauty products.
We are a pioneer in the cosmetics industry and believe we are a
leader in the industry due to the global recognition of our brand names, our
leadership in product innovation, our strong market position in key geographic
markets and the consistently high quality of our products. We sell our prestige
products principally through limited distribution channels to complement the
images associated with our brands. These channels, encompassing over 13,500
points of sale, consist primarily of upscale department stores, specialty
retailers, upscale perfumeries and pharmacies and, to a lesser extent,
freestanding company-owned stores and spas, our own authorized retailer web
sites, stores on cruise ships, and in-flight and duty- free shops. We believe
that our strategy of pursuing limited distribution strengthens our relationships
with retailers, enables our brands to be among the best selling product lines at
the stores and heightens the aspirational quality of our brands. We also sell
products at self-select outlets (jane) and prestige salons (Aveda and Bumble and
bumble).
PRODUCTS
SKIN CARE--Our broad range of skin care products addresses various
skin care needs for women and men. These products include moisturizers, creams,
lotions, cleansers, sun screens and self-tanning products, a number of which are
developed for use on particular areas of the body, such as the face or the hands
or around the eyes. Skin care products accounted for approximately 36% of our
net sales in fiscal 2002.
MAKEUP--We manufacture, market and sell a full array of makeup
products, including lipsticks, mascaras, foundations, eyeshadows, nail polishes
and powders. Many of the products are offered in an extensive array of shades
and colors. We also sell related items such as compacts, brushes and other
makeup tools. Makeup products accounted for approximately 38% of our net sales
in fiscal 2002.
FRAGRANCE--We offer a variety of fragrance products for women and
men. The fragrances are sold in various forms, including eau de parfum sprays
and colognes, as well as lotions, powders, creams and soaps that are based on a
particular fragrance. Fragrance products accounted for approximately 21% of our
net sales in fiscal 2002.
HAIR CARE--Hair care products are offered mainly in salons and in
freestanding retail stores and include styling products, shampoos, conditioners,
and finishing sprays. In fiscal 2002, hair care products accounted for
approximately 5% of our net sales.
Given the personal nature of our products and the wide array of
consumer preferences and tastes, as well as competition for the attention of
consumers, our strategy has been to market and promote our products through
distinctive brands seeking to address broad preferences and tastes. Each brand
has a single global image that is promoted with consistent logos, packaging and
advertising designed to enhance its image and differentiate it from other
brands.
ESTEE LAUDER--Estee Lauder brand products, which have been sold since
1946, are positioned as luxurious, classic and aspirational. We believe that
Estee Lauder brand products are technologically advanced and innovative and have
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a worldwide reputation for excellence. The broad product line principally
consists of skin care, makeup and fragrance products that are presented in high
quality packaging.
CLINIQUE--First introduced in 1968, Clinique skin care and makeup
products are all allergy tested and 100% fragrance free and have been designed
to address individual skin types and needs. The products are based on the
research and related expertise of leading dermatologists. Clinique skin care
products are generally marketed as part of the 3-Step System: Cleanse,
Exfoliate, Moisturize. Clinique also offers fragrances for men and women and a
line of hair care products.
ARAMIS--We pioneered the marketing of prestige men's grooming and
skin care products and fragrances with the introduction of Aramis products in
1964. Aramis continues to offer one of the broadest lines of prestige men's
products and has extended the line to include fragrances for women.
PRESCRIPTIVES--We developed and introduced Prescriptives in 1979.
Prescriptives is positioned as a color authority with an advanced collection of
highly individualized products primarily addressing the makeup and skin care
needs of contemporary women with active lifestyles. The products are
characterized by simple concepts, minimalist design and an innovative image and,
through a system of color application and extensive range of makeup shades,
accommodate a diverse group of consumers.
ORIGINS--Origins, our most recent internally-developed brand, was
introduced in 1990. It is positioned as a plant-based cosmetics line of skin
care, makeup and aromatherapy products that combine time-tested botanical
ingredients with modern science to promote total well-being. Origins sells its
products at our freestanding Origins stores and through stores-within-stores
(which are designed to replicate the Origins store environment within a
department store), at traditional retail counters, in perfumeries and directly
to consumers over the Internet.
TOMMY HILFIGER--We have an exclusive global license arrangement to
develop and market a line of men's and women's fragrances and cosmetics under
the Tommy Hilfiger brand. We launched the line in 1995 with a men's fragrance,
tommy. Today, we manufacture and sell a variety of fragrances and ancillary
products for men and women.
MOAOC--MoAoC products comprise a broad line of color-oriented,
professional cosmetics and professional makeup tools targeting makeup artists
and fashion-conscious consumers. The products are sold through a limited number
of department and specialty stores, at freestanding MoAoC stores and directly to
consumers over the Internet. We acquired Make-Up Art Cosmetics Limited, the
manufacturer of MoAoC products, in three stages: in December 1994, March 1997
and February 1998.
BOBBI BROWN--In October 1995, we acquired the Bobbi Brown line of
color cosmetics, professional makeup brushes and skin care products. Bobbi Brown
products are manufactured to our specifications, primarily by third parties, and
sold through a limited number of department and specialty stores and directly to
consumers over the Internet.
LA MER--La Mer products primarily consist of moisturizing creams,
lotions, cleansers, toners and other skin care products. The line, which is
available in very limited distribution in the United States and certain other
countries, is an extension of the initial Creme de la Mer product that we
acquired in 1995.
JANE --In October 1997, we acquired Sassaby, Inc., the owner of the
jane brand of color cosmetics targeted to young consumers. jane products are
currently distributed only in the United States in the self-select distribution
channel.
DONNA KARAN COSMETICS--In November 1997, we obtained the exclusive
global license to develop, market, and distribute a line of fragrances and other
cosmetics under the Donna Karan New York and DKNY trademarks, including certain
products that were originally sold by The Donna Karan Company. We launched the
9
first DKNY women's fragrance in fiscal 2000 and the first DKNY men's fragrance
in fiscal 2001. Under this license, fragrances have been expanded to include
extensive lines of companion bath and body products.
AVEDA--We acquired the Aveda business in December 1997 and have since
acquired selected Aveda distributors and retail stores. Aveda, a prestige hair
care leader, is a manufacturer and marketer of plant-based hair care, skin care,
makeup and fragrance products. We sell Aveda products to third-party
distributors and prestige salons and spas, specialty retailers, and directly to
consumers at our own freestanding Aveda Environmental Lifestyle Stores and Aveda
Institutes.
STILA--In August 1999, we acquired the business of Los-Angeles-based
Stila Cosmetics, Inc. Stila is known for its stylish, wearable makeup products
and eco-friendly packaging and has developed a following among young,
fashion-forward consumers. Stila products are currently available at the brand's
flagship store in Los Angeles, California, and also in limited distribution in
the United States and certain other countries.
JO MALONE--We acquired London-based Jo Malone Limited in October
1999. Jo Malone is known for its prestige skin care, fragrance and hair care
products showcased at its flagship store in London. Products are also available
through a company catalogue, at a very limited group of specialty stores in the
United States and Canada and at a freestanding store in New York City.
BUMBLE AND BUMBLE--In June 2000, we acquired a controlling majority
equity interest in Bumble and Bumble Products, LLC, a marketer and distributor
of quality hair care products, and Bumble and Bumble, LLC, the operator of a
premier hair salon in New York City. Bumble and bumble styling and other hair
care products are distributed to top-tier salons and select specialty stores.
The founder and two of his partners own the remaining equity interests and have
continued to manage the domestic operations.
KATE SPADE BEAUTY--In November 1999, we obtained exclusive worldwide
rights to the kate spade trademark and related trademarks for the manufacture,
marketing, distribution and sale of beauty products. During fiscal 2002, we
launched the first products, a distinctive and personal signature fragrance and
companion products.
In addition to the foregoing brands, we manufacture and sell Kiton
and Toni Gard products as a licensee.
We have been controlled by the Lauder family since the founding of
our company. Members of the Lauder family, some of whom are our directors,
executive officers and/or employees, beneficially own, directly or indirectly,
as of February 28, 2003, shares of Class A Common Stock and Class B Common Stock
having approximately 91.2% of the outstanding voting power of our Common Stock.
Our principal executive offices are located at 767 Fifth Avenue, New
York, New York 10153. The telephone number at that location is (212) 572-4200.
10
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of our earnings to fixed charges was 6.41:1, 7.04:1,
4.22:1, 5.75:1, 5.77:1, 5.49:1, and 5.58:1 for the six months ended December 31,
2002 and 2001 and for the fiscal years ended June 30, 2002, 2001, 2000, 1999 and
1998, respectively. The ratio of earnings to fixed charges has been computed by
dividing earnings before income taxes and fixed charges before preferred stock
dividends (increased to reflect the pre-tax earnings requirement related
thereto) by the fixed charges. This ratio includes the earnings and fixed
charges of The Estee Lauder Companies Inc. and its consolidated subsidiaries;
fixed charges consist of interest and related charges on debt, preferred stock
dividends and the portion of rentals for real and personal properties in an
amount deemed to be representative of the interest factor.
Effective at the beginning of fiscal 2002, pursuant to our adoption
of SFAS No. 142, we ceased amortization of goodwill. The effect of goodwill
amortization on the ratio of earnings to fixed charges in fiscal 2001, 2000,
1999 and 1998 was not material.
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USE OF PROCEEDS
Unless otherwise provided in a prospectus supplement, we will use the
net proceeds from the sale of the securities offered by this prospectus and the
related prospectus supplements for our general corporate purposes, which may
include repayment of indebtedness, acquisitions, working capital, capital
expenditures, repurchases of our Class A Common Stock pursuant to our previously
announced stock repurchase program and the redemption or repurchase of our $6.50
Cumulative Redeemable Preferred Stock. Pending any specific application, we may
initially invest funds in short-term marketable securities.
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SELECTED CONSOLIDATED FINANCIAL INFORMATION
The following income statement and balance sheet information has been
derived from our consolidated financial statements as of and for the six-month
periods ended December 31, 2002 and December 31, 2001 and as of and for each of
the years in the five-year period ended June 30, 2002. You should read this
information along with our consolidated financial statements and the related
notes incorporated in this prospectus by reference. See "Incorporation of
Certain Documents by Reference." The results of interim periods are not
necessarily indicative of results that may be expected for the full year.
SIX MONTHS ENDED YEAR ENDED
DECEMBER 31, JUNE 30,
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2002 2001 2002 2001 2000 1999 1998
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(UNAUDITED) (IN MILLIONS, EXCEPT PER SHARE AND RATIO DATA)
STATEMENT OF EARNINGS DATA:
Net Sales (a)..................... $2,655.2 $2,493.0 $4,743.7 $4,667.7 $4,440.3 $4,040.3 $3,688.7
Gross profit (a).................. 1,926.7 1,804.4 3,470.3 3,441.3 3,202.3 2,877.5 2,609.6
Operating income.................. 284.4 296.4 341.4 495.6 515.8 456.9 409.1
Interest expense, net............. 5.1 5.7 9.8 12.3 17.1 16.7 6.3
Earnings before income taxes,
minority interest and
accounting change (b)(c)....... 279.3 290.7 331.6 483.3 498.7 440.2 402.8
Provision for income taxes........ 93.5 100.3 114.4 174.0 184.6 167.3 161.1
Minority interest, net of tax..... (2.8) (3.2) (4.7) (1.9) - - (4.9)
Cumulative effect of a change in
accounting principles............. - (20.6) (20.6) (2.2) - - -
Net earnings (c).................. 183.0 166.6 191.9(d) 305.2(e) 314.1 272.9 236.8
Preferred stock dividends......... 11.7 11.7 23.4 23.4 23.4 23.4 23.4
Net earnings attributable to
------------------------------------
common stock (c)............... 171.3 154.9 168.5(b) 281.8(c) 290.7 249.5 213.4
OTHER DATA:
Ratio of earnings to fixed
charges (f).................... 6.41:1 7.04: 4.22:1 5.75:1 5.77:1 5.49:1 5.58:1
PER SHARE DATA:
Net earnings per common
share (c)(g)(h):
Basic.......................... $0.73 $0.65 $0.71(b) $1.18(c) $1.22 $1.05 $0.90
Diluted........................ $0.73 $0.64 $0.70(b) $1.16(c) $1.20 $1.03 $0.89
Weighted average common shares outstanding (g)(h):
Basic.......................... 234.2 238.5 238.2 238.4 237.7 237.0 236.8
Diluted........................ 236.2 241.5 241.1 242.2 242.5 241.2 239.5
Cash dividends declared per
common share (h):.............. $.20 $.10 $.20 $.20 $.20 $.1775 $.17
13
AT
DECEMBER AT JUNE 30,
31, 2002 ------------------------------------------------------------------
----------- 2002 2001 2000 1999 1998
(UNAUDITED) ------------------------------------------------------------------
(IN MILLIONS)
BALANCE SHEET DATA:
Working Capital......................... $ 891.1 $ 968.0 $ 882.2 $ 716.7 $ 708.0 $ 617.2
Total assets............................ 3,565.6 3,416.5 3,218.8 3,043.3 2,746.7 2,512.8
Total debt.............................. 407.7 410.5 416.7 425.4 429.1 436.5
Redeemable preferred stock.............. 360.0 360.0 360.0 360.0 360.0 360.0
Stockholders' equity.................... 1,432.7 1,461.9 1,352.1 1,160.3 924.5 696.4
-------------------
(a) Effective January 1, 2002, we adopted Emerging Issues Task Force
("EITF") Issue No. 01-9, "Accounting for Consideration Given by a
Vendor to a Customer". Upon adoption of this Issue, we reclassified
revenues generated from our purchase with purchase activities as sales
and the costs of our purchase with purchase and gift with purchase
activities as cost of sales, which were previously reported net as
operating expenses. Operating income has remained unchanged by this
adoption. For purposes of comparability, these reclassifications have
been reflected retroactively for all periods presented.
(b) Earnings before income taxes, minority interests and accounting change
is a required element of the computation of the ratio of earnings to
fixed charges.
(c) Pursuant to Statement of Financial Accounting Standards ("SFAS") No.
142 "Goodwill and Other Intangible Assets," financial results for
periods subsequent to July 1, 2001 exclude goodwill amortization.
Goodwill amortization included in fiscal 2001, 2000, 1999 and 1998 was
$20.9 million ($13.4 million after tax), $17.6 million ($11.1 million
after tax), $13.3 million ($8.2 million after tax) and $8.3 million
($5.0 million after tax), respectively. Excluding the effect of
goodwill amortization in these same periods, diluted earnings per
share would have been higher by $.06, $.05, $.03 and $.02,
respectively.
(d) Net earnings, net earnings attributable to common stock and net
earnings per common share for the year ended June 30, 2002 included a
restructuring charge of $76.9 million, after tax, or $.32 per common
share, and a one-time charge of $20.6 million, or $.08 per common
share, attributable to the cumulative effect of adopting SFAS No. 142,
"Goodwill and Other Intangible Assets".
(e) Net earnings, net earnings attributable to common stock and net
earnings per common share for the year ended June 30, 2001 included
restructuring and other non-recurring charges of $40.3 million, after
tax, or $.17 per common share, and a one-time charge of $2.2 million,
after tax, or $.01 per common share, attributable to the cumulative
effect of adopting SFAS No. 133, "Accounting for Derivative
Instruments and Hedging Activities".
(f) For purposes of determining the ratio of earnings to fixed charges,
earnings are defined as income before income taxes, plus fixed charges
before preferred stock dividends (increased to reflect the pre-tax
earnings requirement related thereto). Fixed charges consist of
interest and related charges on debt, preferred stock dividends and
the portion of rentals for real and personal properties in an amount
deemed to be representative of the interest factor.
(g) In December 1997, we adopted the provisions of SFAS No. 128, "Earnings
Per Share," which requires the presentation of both Basic and Diluted
earnings per common share. Consistent with the requirements of SFAS
No. 128, net earnings per common share and weighted average common
shares outstanding have been restated for purposes of comparability.
14
(h) We paid a two-for-one stock split in the form of a 100% stock dividend
on all of our outstanding Common Stock on June 2, 1999. All share and
per share data presented in this prospectus before such date have been
restated to reflect the stock split.
15
DESCRIPTION OF THE DEBT SECURITIES
We may offer the debt securities from time to time as senior debt or
subordinated debt. The debt securities will be issued under the indenture dated
as of November 5, 1999 between us and U.S. Bank Trust National Association, as
successor in interest to State Street Bank and Trust Company, N.A., as trustee
(the "Trustee"). The terms of the indenture are also governed by certain
provisions of the Trust Indenture Act of 1939.
The debt securities may be issued from time to time in one or more
series. The particular terms of each series which is offered by a prospectus
supplement will be described in the related prospectus supplement. In January
2002, we issued $250.0 million aggregate principal amount of our 6% Senior Notes
due 2012 under the indenture.
We have summarized the material terms of the indenture below. The
indenture has been filed as an exhibit to the registration statement. See "Where
You Can Find More Information." You should read the indenture for provisions
that may be important to you. Whenever we refer in this prospectus or in the
related prospectus supplement to particular sections or defined terms contained
in the indenture, those sections or defined terms are incorporated by reference
in this prospectus or the related prospectus supplement, as applicable.
GENERAL
The indenture provides that debt securities in separate series may be
issued by us from time to time without limitation as to aggregate principal
amount. We may specify a maximum aggregate principal amount for the debt
securities of any series. We will determine the terms and conditions of the debt
securities, including the maturity, principal and interest, but those terms must
be consistent with the indenture. The debt securities will be unsecured
obligations of our company.
A prospectus supplement will set forth the following terms of, and
information relating to, the debt securities:
(1) the title of the debt securities;
(2) whether the debt securities are senior debt securities or
subordinated debt securities and, if subordinated debt
securities, the subordination terms relating to those
securities;
(3) whether any of our subsidiaries will provide guarantees of
the debt securities;
(4) the aggregate principal amount of the debt securities (or
principal amount at maturity);
(5) the dates on which the principal amount of the debt
securities will be payable;
(6) the interest rate, if any, which the debt securities will
bear and the interest payment dates for the debt securities
(or the date on which the debt securities accrete interest);
(7) the places where payments on the debt securities will be
payable;
(8) any terms upon which the debt securities may be redeemed, in
whole or in part, at our option;
(9) any provisions that would obligate us to deposit money in an
account for the benefit of the holders of the debt
securities for payments of principal and interest on the
debt securities or other provisions that would obligate us
to repurchase or otherwise redeem the debt securities;
16
(10) the portion of the principal amount, if less than all, of
the debt securities which will be payable upon declaration
of acceleration of the maturity of the debt securities;
(11) whether the debt securities are defeasible;
(12) any addition to or change in the events of default;
(13) the date or dates on which the debt securities may be
converted or exchanged at the option of the holder into
other securities of our company;
(14) any addition to or change in the covenants in the indenture
applicable to any of the debt securities; and
(15) any other material terms of the debt securities not
inconsistent with the provisions of the indenture.
If a series of debt securities is denominated in a currency or
currency unit other than United States dollars, the prospectus supplement will
specify the denomination in which the debt securities will be issued and the
coin or currency in which the principal and any premium or interest on those
debt securities will be payable. In addition, special United States federal
income tax or other considerations applicable to any debt securities which are
denominated in a currency or currency unit other than United States dollars may
be described in the applicable prospectus supplement.
The debt securities may be sold at a substantial discount below their
principal amount. Special United States federal income tax considerations
applicable to debt securities sold at an original issue discount may be
described in the applicable prospectus supplement.
FORM, EXCHANGE AND TRANSFER
The debt securities of each series may be issued in fully registered
or bearer form, without coupons, and, unless otherwise specified in the
applicable prospectus supplement, only in denominations of $1,000 and integral
multiples of $1,000.
Subject to the terms of the indenture and the limitations applicable
to global securities, debt securities may be presented for exchange or for
registration of transfer, endorsed or with the form of transfer endorsed on the
securities executed, at the office of the security registrar or at the office of
any transfer agent designated by us for this purpose. No service charge will be
made for any registration of transfer or exchange of debt securities, but we may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection with that transfer or exchange. The security
registrar or transfer agent will make the transfer or exchange when it is
satisfied with the documents of title and identity of the person making the
request. The security registrar and/or transfer agent initially designated by us
for any debt securities will be named in the applicable prospectus supplement.
We may at any time designate additional transfer agents, rescind the designation
of any transfer agent or approve a change in the office through which any
transfer agent acts. We will always be required to maintain a transfer agent in
each place of payment for the debt securities of each series.
If we decide to partially redeem the debt securities of any series
(or of any series and specified terms), we will not be required to issue,
register the transfer of or exchange those debt securities being redeemed during
a period beginning at the opening of business 15 days before the day of
selection for redemption of debt securities of that series and ending at the
close of business on the day we mail the notice of redemption with respect to
those debt securities selected for redemption.
17
We will describe any material United States federal income tax
consequences specifically applicable to any debt securities and/or their plan of
distribution in the prospectus supplement relating to those debt securities.
MERGER, CONSOLIDATION AND SALE OF ASSETS
The indenture provides that we may not consolidate with or merge
into, or convey, transfer or lease our properties and assets substantially as an
entirety to any Person (as defined in the indenture), unless:
(1) the successor Person, if any, is a corporation, partnership,
limited liability company, trust or other entity organized
and validly existing under the laws of the United States and
assumes our obligations on the debt securities and under the
indenture;
(2) immediately after giving effect to the transaction, no event
of default, and no event which, after notice or lapse of
time or both, would become an event of default, shall have
occurred and be continuing; and
(3) certain other conditions, including any additional
conditions with respect to any particular debt securities
specified in the applicable prospectus supplement, are met.
These provisions apply only to a merger or consolidation in which we
are not the surviving corporation and to sales, conveyances, leases and
transfers by us as transferor or lessor.
If we consolidate with or merge into any other Person or we sell,
convey, transfer or lease our properties and assets substantially as an entirety
to any Person in accordance with the preceding paragraph, the successor Person
formed by the consolidation or merger or to which the sale, conveyance, transfer
or lease is made will be substituted for us under the indenture with the same
effect as if the successor Person had originally executed the indenture. In the
event of any conveyance or transfer other than in the case of a lease, we will
be discharged of all of our obligations and covenants under the indenture and
the debt securities.
EVENTS OF DEFAULT
Unless otherwise specified in the prospectus supplement, each of the
following will constitute an event of default under the indenture with respect
to debt securities of any series:
(1) failure to pay any interest on any debt securities of that
series when due for a continuous period of 60 days, whether
or not, in the case of subordinated debt securities, the
payment is prohibited by the subordination provisions of the
indenture;
(2) failure to pay principal of, or any premium on, any debt
security of that series when due, whether or not, in the
case of subordinated debt securities, the payment is
prohibited by the subordination provisions of the indenture;
(3) failure to perform any of our covenants, or a breach of any
of our warranties, in the indenture, other than a covenant
included in the indenture solely for the benefit of a series
other than that series, for a continuous period of 90 days
after written notice has been given by the Trustee, or the
holders of at least 25% in principal amount of the
outstanding debt securities of that series, as provided in
the indenture;
(4) certain events of bankruptcy, insolvency or reorganization
affecting us; and
(5) any other event of default provided with respect to debt
securities of that series.
18
If an event of default described in clauses (1) through (3) or (5)
with respect to the debt securities of any series at the time outstanding shall
occur and be continuing, either the Trustee or the holders of not less than 25%
in aggregate principal amount of the outstanding debt securities of that series
by notice as provided in the indenture may declare the principal amount of the
debt securities of that series to be due and payable immediately. If the debt
security is an original issue discount debt security or the principal amount of
the debt security is not then determinable, that portion of the principal amount
of the debt security, or other amount instead of the principal amount, as may be
specified in the terms of the debt security will become due and payable
immediately.
If an event of default described in clause (4) above with respect to
the debt securities of any series at the time outstanding shall occur and be
continuing, the principal amount of, and any interest accrued on, all the debt
securities of that series, or, in the case of any original issue discount
security or other debt security, the specified amount, will automatically, and
without any action by the Trustee or any holder, become immediately due and
payable.
After any acceleration, but before a judgment or decree based on that
acceleration, the holders of a majority in aggregate principal amount of the
outstanding debt securities of that series may, under certain circumstances,
rescind and annul that acceleration if all events of default, other than the
non-payment of accelerated principal or interest, or other specified amount,
have been cured or waived as provided in the indenture.
Subject to the sections of the indenture relating to the duties of
the Trustee, if an event of default shall occur and be continuing, the Trustee
will be under no obligation to exercise any of its rights or powers under the
indenture at the request or direction of any of the holders, unless those
holders shall have offered to the Trustee reasonable indemnity. Subject to the
provisions for the indemnification of the Trustee, the holders of a majority in
aggregate 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.
No holder of a debt security of any series will have any right to
institute any proceeding with respect to the indenture, or for the appointment
of a receiver or a trustee, or for any other remedy provided by the indenture,
unless:
(1) the holder has previously given to the Trustee written
notice of a continuing event of default with respect to the
debt securities of that series;
(2) the holders of at least 25% in aggregate principal amount of
the outstanding debt securities of that series have made
written request, and those holders have offered reasonable
indemnity, to the Trustee to institute the proceeding as
trustee; and
(3) the Trustee has failed to institute the proceeding, and has
not received from the holders of a majority in aggregate
principal amount of the outstanding debt securities of that
series a direction inconsistent with that request, within 60
days after that notice, request and offer.
These limitations do not apply to a suit instituted by a holder of a
debt security for the enforcement of payment of the principal of or any premium
or interest on a debt security on or after the applicable due date specified in
the debt security.
Within 90 days after any default with respect to debt securities of
any series, the Trustee will transmit in the manner and to the extent provided
in Section 313(c) of the Trust Indenture Act, notice of those defaults known to
the Trustee, unless a default shall have been cured or waived. In the case of a
default in the payment of the principal of, or any premium on, or interest on
any debt securities of that series, or in the payment of any installment into a
separate account established for the payment of principal and interest on debt
19
securities of any series with respect to debt securities of that series, the
Trustee will be protected in withholding this notice if and so long as the
Trustee in good faith determines that the withholding of the notice is in the
interest of the holders of debt securities of the applicable series.
We are required to deliver to the Trustee, within 120 days after the
end of each fiscal year, a brief certificate of our compliance with all of the
conditions and covenants under the indenture.
MODIFICATION AND WAIVER
The indenture provides that modifications and amendments may be made
by us and the Trustee with the consent of the holders of a majority in aggregate
principal amount of the outstanding debt securities of each series affected by
the modification or amendment. We may not make any of the following
modifications or amendments to the indenture without the consent of the holder
of each outstanding debt security affected by the modification or amendment:
(1) change the stated maturity of the principal of, or any
installment of principal of or interest on, any debt
security;
(2) reduce the principal amount of, or any premium or interest
on, any debt security;
(3) reduce the amount of principal of an original issue discount
security or any other debt security payable upon
acceleration of the maturity of that security;
(4) change the place or currency of payment of principal of, or
any premium or interest on, any debt security;
(5) impair the right to institute suit for the enforcement of
any payment on or with respect to any debt security;
(6) in the case of subordinated debt securities, modify the
subordination provisions in a manner adverse to the holders
of the subordinated debt securities;
(7) except as provided in the indenture, release the subsidiary
guarantee of a subsidiary guarantor;
(8) reduce the percentage in principal amount of outstanding
debt securities of any series, the consent of whose holders
is required for modification or amendment of the indenture;
(9) reduce the percentage in principal amount of outstanding
debt securities of any series necessary for waiver of
compliance with certain provisions of the indenture or for
waiver of certain defaults; or
(10) modify those provisions with respect to modification and
waiver.
The holders of a majority in principal amount of the outstanding debt
securities of any series may waive our compliance with certain restrictive
provisions of the indenture and may waive certain past defaults under the
indenture. Those holders may not waive a default in the payment of principal,
premium or interest on the debt securities and may not waive our compliance with
certain covenants and provisions of the indenture without the consent of the
holder of each outstanding debt security of any series affected.
LEGAL DEFEASANCE OR COVENANT DEFEASANCE
The indenture provides that we may elect, at any time, to terminate
all of our obligations under the debt securities of a particular series and the
indenture, except for certain obligations, including those relating to the
20
defeasance trust and obligations to register the transfer or exchange of the
debt securities of that series, to replace mutilated, destroyed, lost or stolen
debt securities of that series and to maintain a registrar and paying agent in
respect of the debt securities of that series. We refer to this as "legal
defeasance." We may also elect, at any time, to terminate our obligations under
certain material covenants with respect to a particular series of debt
securities. We refer to this as "covenant defeasance."
In order to exercise our defeasance options with respect to debt
securities of any series, we must irrevocably deposit in trust for the benefit
of the holders of those debt securities money or certain U.S. government
obligations, or both, for the payment of principal of, premium, if any, and
interest on those debt securities of that series to maturity or redemption. We
must comply with certain other conditions, including delivery to the Trustee of
an opinion of counsel to the effect that the holders of those debt securities
will not recognize income, gain or loss for federal income tax purposes as a
result of that defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
the defeasance had not occurred.
SATISFACTION AND DISCHARGE
The indenture provides that we may request the Trustee to execute
proper instruments acknowledging satisfaction and discharge of the indenture
with respect to any series of debt securities when:
(1) either:
(A) all previously authenticated and delivered debt
securities of the series to be discharged have
been delivered to the Trustee for cancellation,
other than the following debt securities:
(a) securities in bearer form surrendered
for exchange for "registered securities"
and maturing after the exchange, whose
surrender is not required or has been
waived, as provided in the indenture,
(b) debt securities which have been
destroyed, lost or stolen and which have
been replaced or paid, as provided in
the indenture,
(c) coupons appertaining to debt securities
called for redemption and maturing after
the relevant redemption date, whose
surrender has been waived, as provided
in the indenture, and
(d) debt securities for whose payment money
has been deposited in trust with the
Trustee or any paying agent or
segregated and held in trust by us but
was returned to us prior to
cancellation, as provided in the
indenture;
or
(B) all debt securities of the series to be
discharged:
(a) have become due and payable,
(b) will become due and payable at their stated
maturity within one year, or
(c) if redeemable at our option, are to be called for
redemption within one year under arrangements
reasonably satisfactory to the Trustee for the
21
giving of notice of redemption by the Trustee in
our name, and at our expense,
and we, in the case of (B)(a), (b) or (c) above, have
irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose an amount,
in the currency in which the debt securities of the series
to be discharged are payable or in U.S. government
obligations, sufficient to pay and discharge the entire
indebtedness on any debt securities still outstanding, for
principal, any premium, and interest to the date of the
deposit, in the case of debt securities which have become
due and payable, or to the stated maturity or redemption
date; and
(2) we have paid or caused to be paid all other sums payable by
us under the indenture; and
(3) we have delivered to the Trustee an officers' certificate
and an opinion of counsel, each stating that all conditions
precedent relating to the satisfaction and discharge of the
indenture as to the series to be discharged have been
satisfied.
GOVERNING LAW
The indenture is, and the debt securities will be, governed by and
construed in accordance with the laws of the State of New York. The indenture is
subject to the provisions of the Trust Indenture Act that are required to be a
part of the indenture and shall, to the extent applicable, be governed by those
provisions.
DESCRIPTION OF CAPITAL STOCK
Our authorized capital stock consists of 650,000,000 shares of Class
A Common Stock, 240,000,000 shares of Class B Common Stock, and 23,600,000
shares of Preferred Stock, par value $.01 per share, including 3,600,000 shares
of $6.50 Cumulative Redeemable Preferred Stock. As of January 24, 2003, there
were 123,854,305 shares of Class A Common Stock and 108,412,533 shares of Class
B Common Stock outstanding. All of the shares of Class B Common Stock are
beneficially owned by members of the Lauder family. Of the authorized shares of
Preferred Stock, 3,600,000 shares of $6.50 Cumulative Redeemable Preferred Stock
are outstanding and, as of the date of this prospectus, are beneficially owned
by members of the Lauder family. The following description is a summary and is
subject to and qualified in its entirety by reference to the provisions of our
Restated Certificate of Incorporation previously filed with the Commission.
COMMON STOCK
The shares of Class A Common Stock and Class B Common Stock are
identical in all respects, except for voting rights, certain conversion rights
and transfer restrictions in respect of the shares of the Class B Common Stock,
as described below.
VOTING RIGHTS. Each share of Class A Common Stock entitles the holder
to one vote on each matter submitted to a vote of our stockholders and each
share of Class B Common Stock entitles the holder to ten votes on each such
matter, including the election of directors. There is no cumulative voting.
Except as required by applicable law, holders of the Class A Common Stock and
Class B Common Stock vote together on all matters submitted to a vote of the
stockholders. With respect to certain corporate changes, such as liquidations,
reorganizations, recapitalizations, mergers, consolidations and sales of all or
substantially all of our assets, holders of the Class A Common Stock and Class B
Common Stock vote together as a single class and the approval of 75% of the
outstanding voting power is required to authorize or approve such transactions.
Any action that can be taken at a meeting of the stockholders may be
taken by written consent in lieu of the meeting if we receive consents signed by
stockholders having the minimum number of votes that would be necessary to
22
approve the action at a meeting at which all shares entitled to vote on the
matter were present. This could permit the holders of Class B Common Stock to
take all actions required to be taken by the stockholders without providing the
other stockholders the opportunity to make nominations or raise other matters at
a meeting. The right to take action by less than unanimous written consent
expires at such time as there are no shares of Class B Common Stock outstanding.
DIVIDENDS. Holders of Class A Common Stock and Class B Common Stock
are entitled to receive dividends at the same rate if, as and when such
dividends are declared by our Board of Directors out of assets legally available
therefor after payment of dividends required to be paid on shares of preferred
stock, if any.
If a dividend or distribution payable in shares of Class A Common
Stock is made on the Class A Common Stock, we must also make a pro rata and
simultaneous dividend or distribution on the Class B Common Stock payable in
shares of Class B Common Stock. Conversely, if a dividend or distribution
payable in shares of Class B Common Stock is made on the Class B Common Stock,
we must also make a pro rata and simultaneous dividend or distribution on the
Class A Common Stock payable in shares of Class A Common Stock.
RESTRICTIONS ON TRANSFER. If a holder of Class B Common Stock
transfers such shares, whether by sale, assignment, gift, bequest, appointment
or otherwise, to a person other than a Lauder Family Member (as defined below),
such shares will be converted automatically into shares of Class A Common Stock.
In the case of a pledge of shares of Class B Common Stock to a financial
institution, such shares will not be deemed to be transferred unless and until a
foreclosure occurs.
As used in this prospectus, the term "Lauder Family Members" includes
only the following persons: (i) Mrs. Estee Lauder and her estate, guardian,
conservator or committee; (ii) each descendant of Mrs. Lauder (a "Lauder
Descendant") and their respective estates, guardians, conservators or
committees; (iii) each "Family Controlled Entity" (as defined below); and (iv)
the trustees, in their respective capacities as such, of each "Family Controlled
Trust" (as defined below). The term "Family Controlled Entity" means (i) any
not-for-profit corporation if at least 80% of its board of directors is composed
of Mrs. Lauder and/or Lauder Descendants; (ii) any other corporation if at least
80% of the value of its outstanding equity is owned by Lauder Family Members;
(iii) any partnership if at least 80% of the value of its partnership interests
is owned by Lauder Family Members; and (iv) any limited liability or similar
company if at least 80% of the value of the company is owned by Lauder Family
Members. The term "Family Controlled Trust" includes certain trusts existing on
November 16, 1995 and trusts the primary beneficiaries of which are Mrs. Lauder,
Lauder Descendants, spouses of Lauder Descendants and/or charitable
organizations, provided that if the trust is a wholly charitable trust, at least
80% of the trustees of such trust consist of Mrs. Lauder and/or Lauder
Descendants.
CONVERSION. Class A Common Stock has no conversion rights. Class B
Common Stock is convertible into Class A Common Stock, in whole or in part, at
any time and from time to time at the option of the holder, on the basis of one
share of Class A Common Stock for each share of Class B Common Stock converted.
In the event of a transfer of shares of Class B Common Stock to any person other
than a Lauder Family Member, each share of Class B Common Stock so transferred
automatically will be converted into one share of Class A Common Stock. Each
share of Class B Common Stock will also automatically convert into one share of
Class A Common Stock if, on the record date for any meeting of the stockholders,
the number of shares of Class B Common Stock then outstanding is less than 10%
of the aggregate number of shares of Class A Common Stock and Class B Common
Stock then outstanding.
LIQUIDATION. In the event of liquidation, after payment of our debts
and other liabilities and after making provision for the holders of Preferred
Stock, if any, our remaining assets will be distributable ratably among the
holders of the Class A Common Stock and Class B Common Stock treated as a single
class.
23
MERGERS AND OTHER BUSINESS COMBINATIONS. Upon a merger or
consolidation, holders of each class of Common Stock are entitled to receive
equal per share payments or distributions, except that in any transaction in
which shares of capital stock are distributed, such shares may differ as to
voting rights to the extent and only to the extent that the voting rights of the
Class A Common Stock and Class B Common Stock differ at that time. We may not
dispose of all or any substantial part of our assets to, or merge or consolidate
with, any person, entity or "group" (as defined in Rule 13d-5 of the Exchange
Act), which beneficially owns in the aggregate ten percent or more of our
outstanding Common Stock (a "Related Person") without the affirmative vote of
the holders, other than such Related Person, of not less than 75% of the voting
power of outstanding Class A Common Stock and Class B Common Stock voting as a
single class. For the sole purpose of determining the 75% vote, a Related Person
will also include the seller or sellers from whom the Related Person acquired,
during the preceding six months, at least five percent of the outstanding shares
of Class A Common Stock in a single transaction or series of related
transactions pursuant to one or more agreements or other arrangements (and not
through a brokers' transaction) but only if such seller or sellers have
beneficial ownership of shares of Common Stock having a fair market value in
excess of $10 million in the aggregate following such disposition to such
Related Person. This 75% voting requirement is not applicable, however, if (i)
the proposed transaction is approved by a vote of not less than a majority of
our board of directors who are neither affiliated nor associated with the
Related Person (or the seller of shares to the Related Person as described
above) or (ii) in the case of a transaction pursuant to which the holders of
Common Stock are entitled to receive cash, property, securities or other
consideration, the cash or fair market value of the property, securities or
other consideration to be received per share in such transaction is not less
than the higher of (A) the highest price per share paid by the Related Person
for any of its holdings of Common Stock within the two-year period immediately
prior to the announcement of the proposed transaction or (B) the highest closing
sale price during the 30-day period immediately preceding such date or during
the 30-day period immediately preceding the date on which the Related Person
became a Related Person, whichever is higher.
OTHER PROVISIONS. The holders of the Class A Common Stock and Class B
Common Stock are not entitled to preemptive rights. Neither the Class A Common
Stock nor the Class B Common Stock may be subdivided or combined in any manner
unless the other class is subdivided or combined in the same proportion.
TRANSFER AGENT AND REGISTRAR. The Transfer Agent and Registrar for
the Class A Common Stock is Mellon Investor Services.
PREFERRED STOCK
$6.50 CUMULATIVE REDEEMABLE PREFERRED STOCK. Holders of the $6.50
Cumulative Redeemable Preferred Stock are entitled to receive cumulative cash
dividends at a rate of $6.50 per annum per share payable in quarterly
installments. If such dividends are not paid in full, or declared in full and
sums set apart for full payment thereof, then no dividends may be paid or
declared upon the Common Stock or any other capital stock ranking junior to or
on parity with such $6.50 Cumulative Redeemable Preferred Stock. If, at the time
of an annual meeting of stockholders, the equivalent of six quarterly dividends
are in arrears, then the number of directors on our board of directors will be
increased by two and the holders of the outstanding $6.50 Cumulative Redeemable
Preferred Stock voting separately as a class will be entitled at the meeting to
vote for the election of two directors. The right to elect two directors and
such directors' terms on the board of directors will continue until such
arrearage in the payment of dividends ceases to exist. Shares of $6.50
Cumulative Redeemable Preferred Stock are subject to mandatory redemption on
June 30, 2005 at a redemption price of $100 per share. Following such date and
so long as such mandatory redemption obligations have not been discharged in
full, no dividends may be paid or declared upon the Common Stock, or on any
other capital stock ranking junior to or on a parity with such $6.50 Cumulative
Redeemable Preferred Stock and no shares of Common Stock or such junior or
parity stock may be redeemed or acquired by us for any consideration. We may
redeem the $6.50 Cumulative Redeemable Preferred Stock owned by the EL 1994
Trust and a trust for the primary benefit of Leonard A. Lauder ("LAL 1995
Trust"), in whole or in part, after the death of Mrs. Lauder. If shares of $6.50
24
Cumulative Redeemable Preferred Stock are transferred by the EL 1994 Trust or
the LAL 1995 Trust, we would be unable to redeem such transferred shares until
June 30, 2005. If Mrs. Lauder dies before June 30, 2005, holders of the $6.50
Cumulative Redeemable Preferred Stock may put such shares to us at a price of
$100 per share (which amount represents the liquidation preference per share).
OTHER PREFERRED STOCK. Our board of directors is authorized, subject
to any limitations prescribed by Delaware law or the rules of the NYSE or other
organizations on whose systems our stock may be quoted or listed, to provide for
the issuance of additional shares of Preferred Stock in one or more series, to
establish from time to time the number of shares to be included in each such
series, or fix the rights, powers, preferences and privileges of the shares of
each wholly unissued series and any qualifications, limitations or restrictions
thereon, and to increase or decrease the number of shares of such series,
without any further vote or action by the stockholders. The approval of the
holders of at least 75% of the outstanding shares of Class B Common Stock,
however, is required for the issuance of shares of Preferred Stock that have the
right to vote for the election of directors under ordinary circumstances or to
elect 50% or more of the directors under any circumstances. Depending upon the
terms of the Preferred Stock established by the board of directors, any or all
series of Preferred Stock could have preference over the Common Stock with
respect to dividends and other distributions and upon liquidation or could have
voting or conversion rights that could adversely affect the holders of the
outstanding Common Stock. In addition, the Preferred Stock could delay, defer or
prevent a change of control. We have no present plans to issue any additional
shares of Preferred Stock.
STOCKHOLDERS' AGREEMENT
All Lauder Family Members (other than The Lauder Foundation, a tax
exempt, private foundation, Aerin Lauder, Jane Lauder, The 4202 Corporation, The
Estee Lauder 1994 Trust, the Estee Lauder 2001 Charitable Trust and the RSL 4201
Trust) who beneficially own shares of Common Stock have agreed pursuant to a
stockholders' agreement with us (the "Stockholders' Agreement") to vote all
shares beneficially owned by them for Leonard A. Lauder, Ronald S. Lauder and
one person (if any) designated by each as directors of our company. As of
February 28, 2003, these stockholders beneficially owned, in the aggregate,
shares of Common Stock having approximately 86.7% of our voting power.
REGISTRATION RIGHTS AGREEMENT
We and certain members of the Lauder family, certain trusts and other
entities controlled by members of the Lauder family and Morgan Guaranty Trust
Company of New York ("Morgan Guaranty") are parties to a Registration Rights
Agreement (the "Registration Rights Agreement"), pursuant to which each of
Leonard A. Lauder, Ronald S. Lauder and Morgan Guaranty have three demand
registration rights and The Estee Lauder 1994 Trust has six demand registration
rights in respect of shares of Class A Common Stock (including Class A Common
Stock issued upon conversion of Class B Common Stock) held by them. All the
parties to the Registration Rights Agreement (other than us) also have an
unlimited number of piggyback registration rights in respect of their shares.
The rights of Morgan Guaranty and any pledgee of The Estee Lauder 1994 Trust
under the Registration Rights Agreement will be exercisable only in the event of
a default under certain loan arrangements.
25
PLAN OF DISTRIBUTION
We may sell the debt securities being offered by this prospectus
directly to a limited number of institutional purchasers or to a single
purchaser or through agents, underwriters, dealers or remarketing firms.
Offers to purchase debt securities may be solicited directly by us or
by agents designated by us from time to time. Any agent who may be deemed to be
an underwriter, as that term is defined in the Securities Act of 1993, as
amended (the "Securities Act"), involved in the offer or sale of the debt
securities in respect of which this prospectus is delivered will be named, and
any commissions payable by us to that agent will be set forth, in a prospectus
supplement. The agent will be acting on a reasonable efforts basis for the
period of its appointment or, if indicated in the applicable prospectus
supplement, on a firm commitment basis. Agents may be entitled under agreements
which may be entered into with us to indemnification by us against certain civil
liabilities, including liabilities under the Securities Act, and may be
customers of, engage in transactions with or perform services for us in the
ordinary course of business.
If any underwriters are utilized in any sale of the debt securities
in respect of which this prospectus is delivered, we will enter into an
underwriting agreement with those underwriters at the time of sale to them and
the names of the underwriters and the terms of the transaction will be set forth
in the prospectus supplement, which will be used by the underwriters to make
resales of the debt securities. The underwriters may be entitled, under the
relevant underwriting agreement, to indemnification by us against certain civil
liabilities, including liabilities under the Securities Act, and may be
customers of, engage in transactions with or perform services for us in the
ordinary course of business.
If a dealer is utilized in any sale of the debt securities, we will
sell the debt securities to the dealer, as principal. The dealer may then resell
those debt securities to the public at varying prices to be determined by the
dealer at the time of resale. Dealers may be entitled to indemnification by us
against certain civil liabilities, including liabilities under the Securities
Act, and may be customers of, engage in transactions with or perform services
for us in the ordinary course of business.
Securities may also be offered and sold, if so indicated in the
prospectus supplement, in connection with a remarketing upon their purchase, in
accordance with their terms, by one or more firms ("remarketing firms"), acting
as principals for their own accounts or as our agents. Any remarketing firm will
be identified and the terms of its agreement, if any, with us and its
compensation will be described in the prospectus supplement. Remarketing firms
may be entitled under agreements which may be entered into with us to
indemnification by us against certain civil liabilities, including liabilities
under the Securities Act, and may be customers of, engage in transactions with
or perform services for us in the ordinary course of business.
If so indicated in the applicable prospectus supplement, we will
authorize agents, underwriters or dealers to solicit offers by certain
purchasers to purchase debt securities from us, at the public offering price set
forth in the prospectus supplement pursuant to delayed delivery contracts
providing for payment and delivery on a specified date in the future. These
contracts will be subject to only those conditions set forth in the prospectus
supplement, and the prospectus supplement will set forth the commission payable
for solicitation of such offers.
LEGAL MATTERS
The validity of the debt securities offered by this prospectus has
been passed upon for us by Weil, Gotshal & Manges LLP, New York, New York.
Certain legal matters in connection with offerings made by this prospectus may
be passed upon for any underwriters, dealers or agents by counsel named in the
applicable prospectus supplement.
26
EXPERTS
The consolidated financial statements and schedule as of and for the
year ended June 30, 2002 that are contained in our Annual Report on Form 10-K
for the fiscal year ended June 30, 2002 have been incorporated by reference
herein in reliance upon the reports of KPMG LLP, independent accountants,
incorporated by reference herein, and upon the authority of said firm as experts
in accounting and auditing. The audit report covering the fiscal 2002 financial
statements refers to a change in accounting for goodwill and other intangible
assets, and the disclosures related thereto which were added to the notes to the
financial statements for fiscal 2001 and 2000.
On April 17, 2002, we filed a current report on Form 8-K indicating
that we had terminated Arthur Andersen LLP as our independent auditor and
engaged KPMG LLP as our independent auditor. After reasonable efforts, we have
been unable to obtain Arthur Andersen's consent to the incorporation by
reference of their audit report on the financial statements and schedule from
our Annual Report on Form 10-K as of and for the years ended June 30, 2001 and
2000. Accordingly, Arthur Andersen LLP has not consented to the inclusion of
their report in this prospectus, and we have dispensed with the requirement to
file their consent in reliance on Rule 437a under the Securities Act. Because
Arthur Andersen LLP has not consented to the inclusion of their report in this
prospectus, you will not be able to recover against Arthur Andersen LLP under
Section 11 of the Securities Act for any untrue statements of a material fact
contained in the financial statements audited by Arthur Andersen LLP
incorporated by reference in this prospectus or any omissions to state a
material fact required to be stated therein.
27
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Expenses in connection with the issuance and distribution of the
securities being registered are estimated (other than with respect to the
Commission's registration fee) to be as follows:
Registration fee ..................................$ 40,450.00
Trustee's expenses ............................... 5,000.00
Accounting fees and expenses ..................... 75,000.00
Legal fees and expenses .......................... 75,000.00
Rating agency fees ............................... 75,000.00
Miscellaneous...................................... 10,000.00
-----------
Total...................................... $280,450.00
===========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Generally, Section 145 of the General Corporation Law of the State of
Delaware (the "GCL") permits a corporation to indemnify any person made a party
to an action, by reason of the fact that such person is or was a director,
officer, employee or agent of the corporation or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation or enterprise. To the extent that person has been successful in any
such matter, that person shall be indemnified against expenses actually and
reasonably incurred by him. In the case of an action by or in the right of the
corporation, no indemnification may be made in respect of any matter as to which
that person was adjudged liable unless and only to the extent that the Delaware
Court of Chancery or the court in which the action was brought determines that
despite the adjudication of liability that person is fairly and reasonably
entitled to indemnity for proper expenses.
Our By-Laws provide for indemnification of our directors and officers
to the fullest extent permitted by law.
Section 102(b)(7) of the GCL enables a Delaware corporation to
include a provision in its certificate of incorporation limiting a director's
liability to the corporation or its stockholders for monetary damages for
breaches of fiduciary duty as a director. Our Certificate of Incorporation
provides for such limitation to the full extent permitted under Delaware law.
Our directors and officers are covered by insurance policies
indemnifying against certain liabilities, including certain liabilities arising
under the Securities Act which might be incurred by them in such capacities and
against which we may not indemnify them.
II-1
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
Exhibit Number Exhibit Description
-------------- -------------------
*1 Form of Underwriting Agreement.
+4 Indenture, dated as of November 5, 1999, between the Company
and U.S. Bank Trust National Association, as successor in
interest to State Street Bank and Trust Company, N.A.,
relating to the Debt Securities (filed as Exhibit 4 to
Amendment No. 1 to our Registration Statement on Form S-3
(No. 333-85947) on November 5, 1999 and incorporated herein
by reference).
*5 Opinion of Weil, Gotshal & Manges LLP.
*12 Statement regarding computation of ratio of earnings to
fixed charges.
*23.1 Consent of KPMG LLP.
*23.2 Notice regarding consent of Arthur Andersen LLP.
*23.3 Consent of Weil, Gotshal & Manges LLP (included in the
Opinion filed as Exhibit 5).
*24 Power of Attorney (included on signature page to
Registration Statement).
*25 Statement of Eligibility on Form T-1 of U.S. Bank Trust
National Association.
________________________
* Filed herewith.
+ 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 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 a
prospectus filed with the Commission
pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and
price represent no more than a 20
percent change in the maximum aggregate
offering price set forth in the
"Calculation of Registration Fee" table
in the effective registration statement;
and
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the registration
statement or any material change to such
information in the registration
statement;
II-1
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the Registration
Statement;
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a
new registration statement relating to the
securities offered therein, and the offering of
such securities at that time shall be deemed to be
the initial bona fide offering thereof; and
(3) To remove from registration by means of a
post-effective amendment any of the securities
being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the Registrant's annual report pursuant to
Section 13(a) or 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) 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 in accordance with the rules and regulations prescribed
by the Commission under Section 305(b)(2) of the Act.
(d) 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 ay action, suit or proceeding)
is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-2
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 New York, New York, on this 28th day of March, 2003.
THE ESTEE LAUDER COMPANIES INC.
By: /s/ Richard W. Kunes
---------------------------------------------
Name: Richard W. Kunes
Title: Senior Vice President and Chief Financial
Officer
POWER OF ATTORNEY
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 dates indicated. Each person whose name appears below
hereby constitutes Richard W. Kunes, Fred H. Langhammer and Paul E. Konney such
person's true and lawful attorney, with full power of substitution to sign for
such person and in such person's name and capacity indicated below, any and all
amendments to this Registration Statement, including Post-Effective Amendments,
and to file the same with the Securities and Exchange Commission, hereby
ratifying and confirming such person's signature as it may be signed by said
attorney to any and all amendments.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Fred H. Langhammer President and Chief Executive Officer March 28, 2003
------------------------------------------ and Director (Principal Executive
Fred H. Langhammer Officer)
/s/ Leonard A. Lauder Chairman of the Board March 28, 2003
------------------------------------------
Leonard A. Lauder
/s/ Ronald S. Lauder Director March 28, 2003
------------------------------------------
Ronald S. Lauder
/s/ William P. Lauder Director March 28, 2003
------------------------------------------
William P. Lauder
/s/ Charlene Barshefsky Director March 28, 2003
------------------------------------------
Charlene Barshefsky
/s/ Lynn Forester de Rothschild Director March 28, 2003
------------------------------------------
Lynn Forester de Rothschild
/s/ Irvine O. Hockaday, Jr. Director March 28, 2003
------------------------------------------
Irvine O. Hockaday, Jr.
II-3
/s/ Richard D. Parsons Director March 28, 2003
------------------------------------------
Richard D. Parsons
/s/ Marshall Rose Director March 28, 2003
------------------------------------------
Marshall Rose
/s/ Richard W. Kunes Senior Vice President and Chief March 28, 2003
------------------------------------------ Financial Officer (Principal Financial
Richard W. Kunes and Accounting Officer)
II-4
EXHIBIT INDEX
Exhibit Number Exhibit Description
-------------- -------------------
*1 Form of Underwriting Agreement.
+4 Indenture, dated as of November 5, 1999, between the Company
and U.S. Bank Trust National Association, as successor in
interest to State Street Bank and Trust Company, N.A.,
relating to the Debt Securities (filed as Exhibit 4 to
Amendment No. 1 to our Registration Statement on Form S-3
(No. 333-85947) on November 5, 1999 and incorporated herein
by reference).
*5 Opinion of Weil, Gotshal & Manges LLP.
*12 Statement regarding computation of ratio of earnings to
fixed charges.
*23.1 Consent of KPMG LLP.
*23.2 Notice regarding consent of Arthur Andersen LLP.
*23.3 Consent of Weil, Gotshal & Manges LLP (included in the
Opinion filed as Exhibit 5).
*24 Power of Attorney (included on signature page to
Registration Statement).
*25 Statement of Eligibility on Form T-1 of U.S. Bank Trust
National Association.
________________________
* Filed herewith.
+ Incorporated herein by reference.