As filed with the United States Securities and Exchange Commission on
October 4, 2000.
Registration No. 333-______________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
HORIZON OFFSHORE, INC.
HORIZON VESSELS, INC.
HORIZON OFFSHORE CONTRACTORS, INC.
HORIZON SUBSEA SERVICES, INC.
(EXACT NAME OF EACH REGISTRANT AS SPECIFIED IN ITS CHARTER)
Delaware 2500 CityWest Boulevard, Suite 2200 76-487309
Delaware Houston, Texas 77042 76-0534879
Delaware (713) 361-2600 76-0534878
Delaware (ADDRESS, INCLUDING ZIP CODE, AND 62-1807393
(STATE OR OTHER TELEPHONE NUMBER,INCLUDING AREA CODE, (I.R.S. EMPLOYER
JURISDICTION OF OF EACH REGISTRANT'S PRINCIPAL IDENTIFICATION NUMBER)
INCORPORATION OR EXECUTIVE OFFICES)
ORGANIZATION)
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DAVID W. SHARP COPY TO:
CHIEF FINANCIAL OFFICER WILLIAM B. MASTERS
HORIZON OFFSHORE, INC. JONES, WALKER, WAECHTER,
2500 CITYWEST BOULEVARD, SUITE 2200 POITEVENT, CARRE`RE & DENE`GRE, L.L.P.
HOUSTON, TEXAS 77042 201 ST. CHARLES AVENUE, 51ST FLOOR
(713) 361-2600 NEW ORLEANS, LOUISIANA 70170
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE PHONE: (504) 582-8000
NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE) FAX: (504) 582-8012
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after this registration statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. []
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, 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
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PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH AMOUNT OFFERING AGGREGATE AMOUNT OF
CLASS OF SECURITIES TO BE PRICE PER OFFERING REGISTRATION
TO BE REGISTERED(1) REGISTERED (1)(2) UNIT PRICE(3) FEE
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Primary Offering:
Common Stock................. $125,000,000 100% (2)(3) $125,000,000 (4) $33,000
Preferred Stock..............
Depositary Shares............
Debt Securities..............
Warrants.....................
Guarantees of Debt
Securities(5)................
Secondary Offering: 4,300,000 shares $16.125(6) $69,337,500(6) $18,306
Common Stock................. ---------------- ---------- -------------- --------
$194,337,500 $51,306
Total............................
======================================================================================================
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(1) Also registered hereby are such additional and indeterminable amount
of common stock as may be issuable upon conversion of or exchange for
any other securities that provide for conversion or exchange into
common stock.
(2) Such amount represents the issue price of any common stock, the
liquidation preference of any preferred stock, the principal amount of
debt securities issued at their principal amount, the issue price
rather than the principal amount of any debt securities issued at an
original issue discount, and the exercise price of any warrants.
(3) No separate consideration will be received for the common stock
issuable upon conversion of, or in exchange for, debt securities or
preferred stock, or for depositary shares issued with respect to
preferred stock.
(4) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o).
(5) The debt securities of Horizon Offshore, Inc. being registered will be
guaranteed by one or more of its guarantor subsidiaries listed above.
(6) Estimated solely for the purpose of determining the registration fee
on the basis of the average of the high and low prices of the common
stock on the Nasdaq National Market on September 27, 2000 ($16.125).
------------------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE
REGISTRANTS SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT
THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE
WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO 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 IT IS NOT SOLICITING AN OFFER
TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT
PERMITTED.
Subject to completion, dated October 4, 2000
PROSPECTUS
HORIZON OFFSHORE, INC.
$125,000,000
COMMON STOCK
PREFERRED STOCK
DEPOSITARY SHARES
WARRANTS
DEBT SECURITIES
GUARANTEES OF DEBT SECURITIES
We may offer and sell from time to time:
* common stock;
* preferred stock;
* depositary shares representing preferred stock;
* warrants to purchase common stock;
* debt securities; and
* guarantees by one or more of our subsidiaries of the payment of debt
securities we issue.
We will provide the specific terms and initial public offering prices
of these securities in supplements to this prospectus. You should read
this prospectus and any supplement carefully before you invest. We will
not use this prospectus to confirm sales of any securities unless it is
attached to a prospectus supplement.
We may sell these securities to or through underwriters and also to
other purchasers or through agents. The names of any underwriters or agents
will be stated in an accompanying prospectus supplement.
We may also allow selling stockholders, including our largest
stockholders, Westgate International, L.P. and Highwood Partners, L.P, to
offer and sell up to 4,300,000 shares of common stock under this
prospectus. For additional information on the methods of sale, you should
refer to the section entitled "Plan of Distribution."
Our common stock is traded on the Nasdaq National Market under the symbol
"HOFF."
SEE "RISK FACTORS" ON PAGE 5 FOR INFORMATION THAT YOU SHOULD CONSIDER
BEFORE PURCHASING THESE SHARES.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED THESE SECURITIES OR PASSED ON THE
ADEQUACY OR ACCURACY OF THIS PROSPECTUS AND ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
THE DATE OF THIS PROSPECTUS IS , 2000.
TABLE OF CONTENTS
PAGE
ABOUT THIS PROSPECTUS 3
WHERE YOU CAN FIND MORE INFORMATION 3
FORWARD-LOOKING STATEMENTS 4
THE COMPANY 4
RISK FACTORS 5
RATIO OF EARNINGS TO FIXED CHARGES 7
USE OF PROCEEDS 8
DESCRIPTION OF COMMON STOCK 8
DESCRIPTION OF PREFERRED STOCK 11
DESCRIPTION OF DEPOSITARY SHARES 12
DESCRIPTION OF DEBT SECURITIES 14
SELLING STOCKHOLDERS 21
PLAN OF DISTRIBUTION 22
LEGAL MATTERS 23
EXPERTS 23
________________
YOU SHOULD RELY ONLY ON INFORMATION INCORPORATED BY REFERENCE OR
PROVIDED IN THIS PROSPECTUS AND ANY PROSPECTUS SUPPLEMENT. WE HAVE NOT
AUTHORIZED ANYONE ELSE TO PROVIDE YOU WITH DIFFERENT INFORMATION.
WE ARE NOT MAKING AN OFFER OF THESE SECURITIES IN ANY STATE WHERE THE
OFFER IS NOT PERMITTED.
YOU SHOULD NOT ASSUME THAT THE INFORMATION IN THIS PROSPECTUS OR ANY
PROSPECTUS SUPPLEMENT IS ACCURATE AS OF ANY DATE OTHER THAN THE DATE ON THE
FRONT COVER OF THOSE DOCUMENTS.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with
the U.S. Securities and Exchange Commission using a "shelf" registration
process. This means:
* we may issue any combination of securities covered by this prospectus
from time to time;
* we will provide a prospectus supplement each time we issue the
securities; and
* the prospectus supplement will provide specific information about the
terms of that offering and also may add, update or change information
contained in this prospectus.
Under the shelf process, selling stockholders may also sell common stock
under this prosepctus, up to a total of 4,300,000 shares. The selling
stockholders may include our largest stockholders Highwood Partners, L.P.
and Westgate International, L.P. The selling stockholders will be
identified, and the number of shares of common stock to be offered by them
will be specified, in a supplement to this prospectus. We will not receive
proceeds from any sale of common stock by selling stockholders.
You should read both this prospectus and the accompanying prosectus
supplement together with additional information described below under the
heading "Where you can find more informaiton."
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You can inspect and copy that information at the
public reference rooms of the SEC at its offices located at 450 Fifth
Street, NW, Washington, D.C. 20549, and at its regional offices located at
7 World Trade Center, Suite 1300, New York, New York 10048 and 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661. You can call the SEC
at 1-800-SEC-0330 for more information about the public reference rooms.
The SEC also maintains an Internet site that contains reports, proxy and
information statements and other information regarding registrants, like
us, that file reports with the SEC electronically. The SEC's Internet
Address is http://www.sec.gov.
We maintain an Internet site at http://www.horizonoffshore.com that
contains information about our business. The information contained at our
Internet site is not part of this prospectus.
We have filed a registration statement and related exhibits with the SEC to
register the securities offered by this prospectus. The registration
statement contains additional information about us and our securities. You
may inspect the registration statement and exhibits without charge at the
SEC's public reference rooms, and you may obtain copies from the SEC at
prescribed rates.
The SEC allows us to "incorporate by reference" the information we file
with it, which means:
* incorporated documents are considered part of the prospectus;
* we can disclose important information to you by referring you to those
documetns; and
* information that we file with the SEC will automatically update and
supersede this incorporated information.
We incorporate by reference the documents listed below and any future
filings we make with the SEC under Sections 13(a), 14 or 15(d) of the
Securities Exchange Act of 1934 until we sell all of the securities:
* Our quarterly report on Form 10-Q for the fiscal quarter ended June
30, 2000 (filed with the SEC on August 14, 2000);
* Our annual report on Form 10-K for the fiscal year ended December 31,
1999 (filed with the SEC on March 30, 2000);
* Our definitive proxy statement, dated May 5, 2000, and filed with the
SEC on May 2, 2000;
* The description of our common stock set forth in our registration
statement on Form 8-A, filed with the SEC on January 22, 1998, by
incorporation by reference to the description of our capital
stock provided under the heading "Description of Capital Stock" of
our registration statement on Form S-1, File No. 333-43965, originally
filed with the SEC on January 9, 1998; and
* All documents filed by us with the SEC pursuant to Sections 13(a), 14
or 15(d) of the Securities Exchange Act after the date of this
prospectus and prior to the termination of this offering.
At your request, we will provide you with a free copy of any of these
filings (except for exhibits, unless the exhibits are specifically
incorporated by reference into the filing). You may request copies by
writing or telephoning us at:
Horizon Offshore, Inc.
2500 CityWest Boulevard, Suite 2200
Houston, Texas 77042
Attn: David W. Sharp
(713) 361-2600
FORWARD-LOOKING STATEMENTS
Some of the information included in this prospectus and in the
documents that we have incorporated by reference contain "forward-looking
statements." Forward-looking statements include, among other things,
business strategy and expectations concerning industry conditions, market
position, future operations, margins, profitability, liquidity and capital
resources. Forward-looking statements generally can be identified by the
use of words such as "may," "will," "expect," "intend," "estimate,"
"anticipate" or "believe" or similar language.
Forward-looking statements are not guarantees of future performance.
They involve risks, uncertainties and assumptions. Our future results may
differ significantly from those expressed in or implied by the
forward-looking statements contained in this prospectus and in the
information incorporated in this prosepctus. Many of the factors that will
determine these results are beyond our ability to control or predict. We
caution you that a number of important factors could cause actual results
to be very different from and worse than our expectations expressed in or
implied by any forward-looking statement. These factors include, but are
not limited to, those discussed in "Risk Factors" beginning on page 5. You
are cautioned not to place undue reliance on these forward-looking
statements, which speak only as of the date they are made. We undertake no
obligation to publicly update our forward-looking statements.
THE COMPANY
We provide marine construction services to the offshore oil and gas
industry primarily in the United States Gulf of Mexico and selected
international areas. Our marine fleet installs marine pipelines to
transport oil and gas from newly installed production platforms and other
subsea production systems, and installs and salvages production platforms
and other marine structures.
We have assembled a fleet of eleven vessels, ten of which are
currently operational. Our fleet is capable of a wide range of marine
construction activities, including installing up to 48-inch pipelines and
smaller diameter rigid and coiled-line pipe in water depths up to 800 feet,
providing pipebury and all other services necessary to commence
transporting oil and gas through an installed pipeline, and installing and
salvaging production platforms and other marine structures.
Our principal executive offices are located at 2500 CityWest
Boulevard, Suite 2200, Houston, Texas 77042 and our telephone number at our
offices is (713) 361-2600.
RISK FACTORS
You should carefully consider the following risk factors, in addition to
the other information set forth or incorporated by reference in this
prospectus, before purchasing any of our securities. Each of these risk
factors could adversely affect our business, operating results and
financial condition, as well as adversely affecting the value of an
investment in our securities.
INDUSTRY VOLATILITY MAY ADVERSELY AFFECT OUR RESULTS OF OPERATIONS
The demand for our services depends on the level of capital expenditures by
oil and gas companies for developmental construction. As a result, the
cyclical nature of the oil and gas industry has a significant effect on our
revenues and profitability. Historically, prices of oil and gas, as well
as the level of exploration and development activity, have fluctuated
substantially. Any significant decline in the worldwide demand for oil and
gas, or prolonged low oil or gas prices in the future, will likely depress
development activity. We are unable to predict future oil and gas prices
or the level of oil and gas industry activity. A prolonged low level of
activity in offshore drilling and exploration will adversely affect our
revenues and profitability.
OUR RAPID GROWTH AND GROWTH STRATEGY INVOLVE RISKS
We have grown rapidly both through internal growth and acquisitions of
additional barges and vessels. Future acquisitions of other complementary
businesses and marine equipment are key elements of our growth strategy.
If we are unable to purchase additional equipment or other vessels on
favorable financial or other terms or to manage acquired businesses or
vessels, this could adversely affect our revenues and profitability. We
cannot assure you that we will be able to identify or acquire equipment or
businesses. In addition, any such future acquisitions may involve
potential delays and increased costs. If we acquire new vessels, we may
need to upgrade or refurbish the vessels. If we experience delays or cost
increases in upgrading or refurbishing the vessels, our operating results
will be negatively affected.
OPERATING HAZARDS MAY INCREASE OUR OPERATING COSTS; WE HAVE LIMITED
INSURANCE COVERAGE
Offshore construction involves a high degree of operational risk. Risks of
vessels capsizing, sinking, grounding, colliding and sustaining damage from
severe weather conditions are inherent in offshore operations. These
hazards may cause significant personal injury or property damage,
environmental damage, and suspension of operations. In addition, we may be
named as a defendant in lawsuits involving potentially large claims as a
result of such occurrences. We maintain what we believe is prudent
insurance protection. However, we cannot assure that our insurance will be
sufficient or effective under all circumstances. A successful claim for
which we are not fully insured may have a material adverse effect on our
revenues and profitability.
WE OPERATE IN A HIGHLY COMPETITIVE INDUSTRY
Our business is highly competitive because construction companies operating
offshore compete vigorously for available projects, which are typically
awarded on a competitive bid basis. This competitive bid process could
adversely affect our growth because our expansion strategy depends on being
awarded projects in areas where we have not performed operations.
Several of our competitors and potential competitors are larger and have
greater financial and other resources than us. Competitors with greater
financial resources may be willing to sustain losses on certain projects to
prevent further market entry by other competitors. In addition, marine
construction vessels have few alternative uses and high maintenance costs,
whether they are operating or not. As a result, some companies may bid
contracts at rates below our rates. These factors may adversely affect the
number of contracts that are awarded to us. Additionally, as a result of
the competitive bidding process, our significant customers vary over time.
THE SEASONALITY OF THE MARINE CONSTRUCTION INDUSTRY MAY ADVERSELY AFFECT
OUR OPERATIONS
Historically, the greatest demand for marine construction services has been
during the period from May to September. This seasonality of the
construction industry in the Gulf is caused both by weather conditions and
by the historical timing of capital expenditures by oil and gas companies
which accompanies this. As a result, revenues are typically higher in the
summer months and lower in the winter months. Although we plan to offset
Gulf seasonalities by pursuing business opportunities in international
areas, we cannot assure that such expansion will offset the seasonality of
our operations in the Gulf.
OUR ACQUISITION GROWTH STRATEGY MAY REQUIRE ADDITIONAL FINANCING
Our acquisition strategy may require significant amounts of additional
capital. We may have to incur substantial indebtedness to finance future
acquisitions and may issue additional equity securities in connection with
such acquisitions.
WE INCUR RISKS ASSOCIATED WITH CONTRACT BIDDING
Substantially all of our projects are performed on a fixed-price basis.
Changes in offshore job conditions and variations in labor and equipment
productivity may affect the revenue and costs on a contract. These
variations may affect our gross profits. In addition, during the summer
construction season, we typically bear the risk of delays caused by adverse
weather conditions.
WE UTILIZE PERCENTAGE-OF-COMPLETION ACCOUNTING
Since our contract revenues are recognized on a percentage-of-completion
basis, we periodically review contract revenue and cost estimates as the
work progresses. Accordingly, adjustments are reflected in income in the
period when such revisions are determined. To the extent that these
adjustments result in a reduction of previously reported profits, we would
recognize a charge against current earnings that may be significant
depending on the size of the adjustment.
WE ARE DEPENDENT ON KEY PERSONNEL
Our success depends on, among other things, the continued active
participation of our executive officers and certain of our other key
operating personnel. Our officers and personnel have extensive experience
in the marine construction industry, both domestically and internationally.
The loss of the services of any one of these persons could impact adversely
our ability to implement our expansion strategy.
OUR PRINCIPAL STOCKHOLDERS HAVE SUBSTANTIAL CONTROL
Westgate International, L.P. and Highwood Partners, L.P. are our two
largest stockholders. They each beneficially own approximately 25.6% of
our outstanding common stock. As a result, each exercises substantial
influence on, and together they control, the outcome of most matters
requiring a stockholder vote, including the election of directors.
WE MAY INCUR ADDITIONAL EXPENDITURES TO COMPLY WITH GOVERNMENTAL
REGULATIONS
Our operations are subject to various governmental regulations, violations
of which may result in civil and criminal penalties, injunctions, and cease
and desist orders. In addition, some environmental statutes may impose
liability without regard to negligence or fault. Although our cost of
compliance with such laws has to date been immaterial, such laws are
changed frequently. Accordingly, it is impossible to predict the cost or
impact of such laws on our future operations.
We depend on demand for our services from the oil and gas industry, and
this demand may be affected by changing tax laws and oil and gas
regulations. As a result, the adoption of laws that curtail oil and gas
production in our areas of operation may adversely affect us. We cannot
determine to what extent our operations may be affected by any new
regulations or changes in existing regulations.
OUR INTERNATIONAL OPERATIONS ARE SUBJECT TO SIGNIFICANT RISKS
A key element of our expansion strategy has been to expand our operations
into international oil and gas producing areas, which we will continue to
do. These international operations are subject to a number of risks
inherent in any business operating in foreign countries including, but not
limited to:
* political, social, and economic instability;
* potential seizure or nationalization of assets;
* increased operating costs;
* modification or renegotiating of contracts;
* import-export quotas; and
* other forms of government regulation which are beyond our control.
Our international operations have not yet been affected materially by such
conditions or events, but if our international operations expand, the
exposure to these risks will increase. As a result, we could, at any one
time, have a significant amount of our revenues generated by operating
activity in a particular country. Therefore, our results of operations
could be susceptible to adverse events beyond our control that could occur
in the particular country in which we are conducting such operations.
Additionally, our competitiveness in international market areas may be
adversely affected by regulations, including but not limited to regulations
requiring:
* the awarding of contracts to local contractors;
* the employment of local citizens; and
* the establishment of foreign subsidiaries with significant ownership
positions reserved by the foreign government for local citizens.
We cannot predict what types of the above events may occur.
RISKS ASSOCIATED WITH OUR JOINT VENTURE OPERATIONS
We believe that we will conduct many of our international operations
through joint ventures, jointly managed by us and the joint venture
partner. Our joint venture with DSND and the operating vessels made
available to us will operate in the Gulf of Mexico, offshore Mexico and
Canada, and in the Caribbean. Under its terms, we do not have the ability
to fully control the business and affairs of the joint venture. We
anticipate entering into additional joint ventures with other entities if
we expand into other international market areas. We cannot assure that we
will undertake such joint ventures or, if undertaken, that such joint
ventures will be successful.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our ratio of earnings to fixed charges for
the years indicated:
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Year ended December 31,
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Six Months Ended
1996 1997 1998 1999 June 30, 2000
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Ratio of earnings to fixed charges _(1) 2.14 4.94 1.41 0.96
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(1) Results are from inception (December 20, 1995) through December 31,
1996. Earnings during this period were insufficient to cover fixed
charges, and fixed charges exceeded earnings by approximately $11.2
million.
For the purpose of computing these ratios, earnings consist of:
* income from continuing operations before income taxes;
* plus fixed charges; and
* less capitalized interest.
Fixed charges are defined as the sum of the following:
* all interest expense;
* the portion of net rental expense which is deemed representative of
the interest factor;
* amortization of debt issuance expense; and
* capitalized interest.
USE OF PROCEEDS
Unless we specify otherwise in the applicable prospectus supplement, we
will use the net proceeds from the sale of offered securities for general
corporate purposes, which may include:
* repaying debt;
* funding capital expenditures, including paying for acquisitions; and
* providing working capital.
We may temporarily invest the net proceeds we receive from any offering of
securities or use the net proceeds to repay short-term debt until we can
use them for their stated purposes.
DESCRIPTION OF COMMON STOCK
As of the date of this prospectus, we are authorized to issue up to
35,000,000 shares of common stock. As of October 1, 2000, we had issued
and outstanding 18,837,409 shares of common stock. As of that date, we
also had approximately 1,998,674 shares of common stock reserved for
issuance upon exercise of options or in connection with other awards
outstanding under various employee or director incentive, compensation and
option plans. The outstanding shares of our common stock are fully paid
and nonassessable. The holders of our common stock are not entitled to
preemptive or redemption rights. Shares of our common stock are not
redeemable and are not convertible into shares of any other class of
capital stock.
The transfer agent and registrar for our common stock is ChaseMellon
Shareholder Services, L.L.C., Overpeck Centre, 85 Challenger Road,
Ridgefield Park, New Jersey 07660.
DIVIDENDS
Subject to any preferences accorded to the holders of our preferred stock,
if and when issued by the board of directors, holders of our common stock
are entitled to dividends at such times and amounts as our board of
directors may determine.
VOTING RIGHTS
Each holder of our common stock is entitled to one vote for each share of
common stock held of record on all matters as to which our stockholders are
entitled to vote. Holders of our common stock are not allowed to cumulate
votes for the election of directors.
RIGHTS UPON LIQUIDATION
In the event of our voluntary or involuntary liquidation, dissolution or
winding up, the holders of our common stock will be entitled to share
equally in any of our assets available for distribution after the payment
in full of all debts and distributions and after the holders of all series
of outstanding preferred stock have received their liquidation preferences
in full.
PROVISIONS OF OUR CERTIFICATE OF INCORPORATION AND BY-LAWS
Our certificate of incorporation and by-laws contain provisions that may
have an adverse effect on the ability of our stockholders to influence our
corporate governance. Summaries of the provisions described in the
preceding paragraph, and certain provisions of Delaware law, are set forth
below. However, you should read our certificate of incorporation and by-
laws for a more complete description of the rights of holders of our common
stock.
CLASSIFIED BOARD OF DIRECTORS. Our certificate of incorporation and
by-laws provide for our board of directors to be divided into three
classes, with each class to be as equal in number of directors as possible.
The three classes serve staggered terms, with each class of directors
elected to serve for three years. Each director serves until the end of
his term or until his successor is duly elected and has qualified.
SIZE OF BOARD OF DIRECTORS; REMOVAL OF DIRECTORS; FILLING OF
VACANCIES. Our certificate of incorporation and by-laws provide that the
number of members of our board of directors shall be fixed from time to
time by our board, but may not be fewer than the number required by
Delaware law. The affirmative vote of 80% of our outstanding shares of
voting stock is required to remove one of our directors from office. Any
new directorships created from an increase in the number of our directors
may be filled by our board. Our certificate and by-laws require that any
vacancies on our board resulting from the death, resignation or removal of
one of our directors be filled only by the affirmative vote of a majority
of our continuing directors.
STOCKHOLDER ACTION BY UNANIMOUS CONSENT. Under Delaware law,
stockholders may act by written consent if such consent is signed by
stockholders having the same amount of voting power that would be
sufficient to take such action at an annual or special meeting. However,
Delaware law also allows a corporation, in its certificate of
incorporation, to restrict or limit this ability of stockholders to act by
written consent. Our certificate of incorporation restricts stockholders
from acting unless such action takes place at a duly called meeting of our
stockholders or by unanimous written consent of our stockholders.
AMENDMENT OF BY-LAWS. Under Delaware law, the power to adopt, amend or
repeal by-laws is conferred upon stockholders. However, a corporation may,
in its certificate of incorporation, also confer such power upon the board
of directors. Our certificate of incorporation and by-laws grant such
powers to our board. Our stockholders may adopt, amend or repeal our by-
laws, but may only do so at a regular or special meeting by the affirmative
vote of 80% of our outstanding voting stock.
AMENDMENT OF CERTIFICATE OF INCORPORATION. Delaware law provides
that, if not otherwise specified in the certificate of incorporation, a
corporation's certificate of incorporation may be amended by the majority
vote of its stockholders. Our certificate of incorporation requires the
affirmative vote of 80% of our voting stock to amend any provisions of our
certificate regarding:
* stockholder unanimous written consents;
* filing vacancies on our board;
* the removal of our directors;
* the limitation of liability of our directors;
* any business combination; and
* any amendments to our certificate of incorporation or by-laws.
ADVANCE NOTICE OF STOCKHOLDER NOMINATIONS AND STOCKHOLDER BUSINESS. Our
by-laws permit a stockholder to nominate a person for election as a
director or propose other matters to be brought before a stockholders'
meeting only if such stockholder has held at least 1% of our voting stock
for at least one year. Subject to exceptions in the case of special
meetings, a stockholder must provide written notice of an intent to
nominate or bring business at least 60 and no more than 270 days prior to
the first anniversary of the preceding year's annual meeting. The required
notice must contain:
* the name, age and address of the proposing stockholder;
* the name of any person acting in concert with such stockholder;
* the number of shares of our voting stock held by the stockholder and
the date acquired; and
* a representation by the stockholder that they are a holder of record of
our stock and will appear at the meeting to make the nomination or
bring up the matter.
If one of our stockholders wishes to make a nomination for election to our
board, the required notice must also contain:
* the name, age, address and principal occupation of each nominee;
* a description of any arrangements between the nominating stockholder
and the nominee;
* the consent of each nominee to serve as a director if elected; and
* any other information required to be included in a proxy statement by
the proxy rules of the SEC.
If a stockholder wishes to propose business to be conducted at any meeting
of our stockholders, the required notice must also set forth a brief
description of the business and the interest of the stockholder in such
business.
Our by-laws provide that, with respect to any business other than the
election of directors, the Company may disregard proposals that:
* are substantially repetitive of a proposal already received by us that
will be voted upon at an upcoming meeting;
* deal with substantially the same subject matter as a prior proposal
voted upon within the last five years that failed to receive, depending
on the circumstances, affirmative votes from between 3% and 10% of our
voting stock; or
* are not proper subjects for stockholder action, as determined by our
board of directors.
DELAWARE SECTION 203. We are subject to Section 203 of the Delaware
General Corporation Law, which imposes a three-year moratorium on the
ability of Delaware corporations to engage in a wide range of specified
transactions with any interested stockholder. An interested stockholder
includes, among other things, any person other than the corporation and its
majority-owned subsidiaries who owns 15% or more of any class or series of
stock entitled to vote generally in the election of directors. However,
the moratorium will not apply if, among other things, the transaction is
approved by:
* the corporation's board of directors prior to the date the interested
stockholder became an interested stockholder; or
* the holders of two-thirds of the outstanding shares of each class or
series of stock entitled to vote generally in the election of
directors, not including those shares owned by the interested
stockholder.
SPECIAL MEETING OF STOCKHOLDERS. Our by-laws provide that a special meeting
of our stockholders may be called only upon a written request to our
secretary by the beneficial owners of at least 35% of our outstanding
voting stock. Our by-laws also set forth specific requirements as to the
content of such notice, including:
* a brief description of the action to be taken at the meeting;
* the name and address of each beneficial owner in the group making the
request;
* the number of shares of voting stock owned by each such person and the
date acquired;
* a representation that at least one beneficial owner or representative
will appear at the meeting;
* if the proposed action includes a proposal to amend our certificate or
incorporation or by-laws, the text of the proposed amendment.
LIMITATION OF DIRECTORS' LIABILITY. Our certificate of incorporation
contains provisions eliminating the personal liability of our directors to
our company and our stockholders for monetary damages for breaches of their
fiduciary duties as directors to the fullest extent permitted by Delaware
law. Under Delaware law and our certificate of incorporation, our
directors will not be liable for a breach of his or her fiduciary duty
except for liability for:
* a breach of his or her duty of loyalty to our company or our
stockholders;
* acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law;
* dividends or stock repurchases or redemptions that are unlawful under
Delaware law; and
* any transaction from which he or she receives an improper personal
benefit.
Our certificate of incorporation also provides that if Delaware law is at
any time amended to authorize the further limitation of liability of a
director, then the liability of our directors shall be likewise limited.
These provisions pertain only to breaches of duty by directors as directors
and not in any other corporate capacity, such as officers. In addition,
these provisions limit liability only for breaches of fiduciary duties
under Delaware corporate law and not for violations of other laws such as
the federal securities laws.
As a result of these provisions in our certificate of incorporation,
our stockholders may be unable to recover monetary damages against
directors for actions taken by them that constitute negligence or gross
negligence or that are in violation of their fiduciary duties. However,
our stockholders may obtain injunctive or other equitable relief for these
actions. These provisions also reduce the likelihood of derivative
litigation against our directors that might have benefitted us.
REGISTRATION RIGHTS AGREEMENT
We entered into a registration rights agreement with our two principal
stockholders, Highwood Partners, L.P. and Westgate International, L.P.,
whereby they would both have limited rights to require us to register under
the Securities Act of 1933 shares of common stock owned by them. Under the
registration rights agreement, either of them may demand that we register
common stock that they hold as long as that stockholder proposes to
register at least five percent of its holdings of our common stock. They
may not may not require us to make more than one such demand registration
per year nor more than three during the term of the registration rights
agreement. Additionally, if we propose to register shares of our common
stock for our own account or for that of another stockholder, both Highwood
and Westgate have the right to require us to register common stock held by
them on the same terms and conditions.
DESCRIPTION OF PREFERRED STOCK
Our certificate of incorporation authorizes our board of directors to issue
up to 5,000,000 shares of preferred stock, par value $.01 per share, in one
or more series. The number of authorized shares of preferred stock may be
increased or decreased by the affirmative vote of the holders of a majority
of our outstanding stock without the separate vote of holders of preferred
stock as a class.
Each series of preferred stock will have specific financial and other terms
which will be described in a prospectus supplement. The description of the
preferred stock that is set forth in any prospectus supplement is not
complete without reference to the documents that govern the preferred
stock, including our certificate of incorporation and the certificate of
designation relating to the applicable series of preferred stock. These
documents have been or will be included or incorporated by reference as
exhibits to the registration statement of which this prospectus is a part.
Our board of directors is authorized to designate, for each series of
preferred stock, the preferences, qualifications, limitations, restrictions
and optional or other special rights of such series, including, but not
limited to:
* the number of shares in the series;
* the name of the series;
* the dividend rate or basis for determining such rate if any, on the
shares of the series;
* whether dividends will be cumulative and, if so, from which date or
dates;
* whether the shares of the series will be redeemable and if so, the
dates, prices and other terms and
conditions of redemption;
* whether we will be obligated to purchase or redeem shares of the
series pursuant to a sinking fund or otherwise, and the prices,
periods and other terms and conditions upon which the shares of
the series will be redeemed or purchased;
* the rights, if any, of holders of the shares of the series to convert
such shares into, or exchange such shares for, shares of any other
class of stock;
* whether the shares of the series will have voting rights, in addition
to the voting rights provided by law, and, if so, the terms of those
voting rights; and
* the rights of the shares of the series in the event of our liquidation,
dissolution or winding up.
Thus, our board of directors could authorize us to issue preferred stock
with voting, conversion and other rights that could adversely affect the
voting power and other rights of holders of our common stock or other
series of preferred stock. Also, the issuance of preferred stock could
have the effect of delaying, deferring or preventing a change in control of
our company.
The shares of preferred stock of any one series will be identical except
for the dates from which dividends will cumulate, if at all. The shares of
preferred stock will be fully paid and nonassessable.
DESCRIPTION OF DEPOSITARY SHARES
We may, at our option, elect to offer fractional shares of preferred
stock, rather than full shares of preferred stock. If we exercise this
option, we will issue to the public receipts for depositary shares, and
each of these depositary shares will represent a fraction, as set forth in
the applicable prospectus supplement, of a share of a particular series of
preferred stock.
The shares of any series of preferred stock underlying the depositary
shares will be deposited under a deposit agreement between us and a bank or
trust company selected by us.
Subject to the terms of the deposit agreement, each owner of a
depositary share will be entitled, in proportion to the applicable fraction
of a share of preferred stock underlying that depositary share, to all the
rights and preferences of the preferred stock underlying that depositary
share. Those rights include dividend, voting, redemption and liquidation
rights.
The depositary shares will be evidenced by depositary receipts issued
pursuant to the deposit agreement. Depositary receipts will be distributed
to those persons purchasing the fractional shares of preferred stock
underlying the depositary shares, in accordance with the terms of the
offering. Copies of the deposit agreement and depositary receipt will be
filed with the SEC in connection with the offering of specific depositary
shares.
DIVIDENDS AND OTHER DISTRIBUTIONS
The depositary will distribute all cash dividends or other cash
distributions received with respect to the preferred stock to the record
holders of depositary shares relating to the preferred stock in proportion
to the number of depositary shares owned by those holders.
If there is a distribution other than in cash, the depositary will
distribute property received by it to the record holders of depositary
shares that are entitled to receive the distribution, unless the depositary
determines that it is not feasible to make the distribution. If this
occurs, the depositary may, with our approval, sell the property and
distribute the net proceeds from the sale to the applicable holders.
REDEMPTION OF DEPOSITARY SHARES
If a series of preferred stock represented by depositary shares is
subject to redemption, the depositary shares will be redeemed from the
proceeds received by the depositary resulting from the redemption, in whole
or in part, of that series of preferred stock held by the depositary. The
redemption price per depositary share will be equal to the applicable
fraction of the redemption price per share payable with respect to that
series of the preferred stock.
Whenever we redeem shares of preferred stock that are held by the
depositary, the depositary will redeem, as of the same redemption date, the
number of depositary shares representing the shares of preferred stock so
redeemed. If fewer than all the depositary shares are to be redeemed, the
depositary will select the depositary shares to be redeemed by lot or pro
rata, as the depositary may determine.
VOTING THE PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the
preferred stock are entitled to vote, the depositary will mail the
information contained in the notice to the record holders of the depositary
shares underlying the preferred stock. Each record holder of the
depositary shares on the record date (which will be the same date as the
record date for the preferred stock) will be entitled to instruct the
depositary as to the exercise of the voting rights pertaining to the amount
of the preferred stock represented by the holder's depositary shares. The
depositary will then try, as far as practicable, to vote the number of
shares of preferred stock underlying those depositary shares in accordance
with these instructions, and we agree to take all actions deemed necessary
by the depositary to enable the depositary to do so. The depositary will
not vote the shares of preferred stock to the extent it does not receive
specific instructions from the holders of depositary shares underlying the
preferred stock.
AMENDMENT AND TERMINATION OF THE DEPOSITARY AGREEMENT
The form of depositary receipt evidencing the depositary shares and
any provision of the deposit agreement may at any time be amended by
agreement between us and the depositary. However, any amendment which
materially and adversely alters the rights of the holders of depositary
shares will not be effective unless the holders of at least a majority of
the depositary shares then outstanding approve the amendment. We or the
depositary may terminate the deposit agreement only if (a) all outstanding
depositary shares have been redeemed or (b) there has been a final
distribution of the underlying preferred stock in connection with our
liquidation, dissolution or winding up and the preferred stock has been
distributed to the holders of depositary receipts.
CHARGES OF DEPOSITARY
We will pay all transfer and other taxes and governmental charges
arising solely from the existence of the depositary arrangements. We will
also pay charges of the depositary in connection with the initial deposit
of the preferred stock and any redemption of the preferred stock. Holders
of depositary receipts will pay other transfer and other taxes and
governmental charges and those other charges, including a fee for the
withdrawal of shares of preferred stock upon surrender of depositary
receipts, as are expressly provided in the deposit agreement to be for
their accounts.
MISCELLANEOUS
The depositary will forward to holders of depositary receipts all
reports and communications from us that we deliver to the depositary and
that we are required to furnish to the holders of the preferred stock.
Neither we nor the depositary will be liable if either of us is
prevented or delayed by law or any circumstance beyond our control in
performing our respective obligations under the deposit agreement. Our
obligations and those of the depositary will be limited to performance in
good faith of our respective duties under the deposit agreement. Neither
we nor they will be obligated to prosecute or defend any legal proceeding
in respect of any depositary shares or preferred stock unless satisfactory
indemnity is furnished. We and the depositary may rely upon written advice
of counsel or accountants, or upon information provided by persons
presenting preferred stock for deposit, holders of depositary receipts or
other persons believed to be competent and on documents believed to be
genuine.
RESIGNATION AND REMOVAL OF DEPOSITARY
The depositary may resign at any time by delivering notice to us of
its election to resign. We may remove the depositary at any time. Any
resignation or removal will take effect upon the appointment of a successor
depositary and its acceptance of the appointment. We must appoint the
successor depositary within 60 days after delivery of the notice of
resignation or removal.
DESCRIPTION OF DEBT SECURITIES
This section describes the general terms and provisions of the debt
securities that we may issue under the shelf registration statement. The
following description highlights the general terms and provisions of the
debt securities. The summary is not complete. The prospectus supplement
will describe the specific terms of the debt securities offered by that
prospectus supplement, and may update or change some of the information
below.
We may issue debt securities either separately or together with, or upon
the conversion of, or in exchange for, other securities. Unless we specify
otherwise in the applicable prospectus supplement, any debt securities we
offer will be our direct, unsecured general obligations. The debt
securities will either be senior debt securities or subordinated debt
securities. The senior debt securities will rank equally with all of our
other senior and unsubordinated debt. The subordinated debt securities
will have a junior position to all of our senior debt securities.
We may issue the debt securities in one or more series. We will issue
debt securities under an "indenture" to be entered into by us and a
"trustee" qualified under the Trust Indenture Act of 1939. Senior debt
securities will be issued under a "senior indenture" and subordinated debt
securities will be issued under a "subordinated indenture." (The senior
indenture and the subordinated indenture are referred to together as the
"indentures.") The related indenture will be supplemented (each supplement
referred to as a "supplemental indenture") with respect to each series of
debt securities we issue. The name of the trustee for each indenture will
be set forth in the applicable prospectus supplement.
The indentures and each supplemental indenture will be included or
incorporated by reference as exhibits to the registration statement of
which this prospectus is a part. You should read the related indenture and
any supplemental indenture for provisions that may be important to you.
You should also read the related prospectus supplement, which will contain
additional information about the particular debt securities and which may
update or change the information below.
The indentures will be subject to and governed by the Trust Indenture Act.
SPECIFIC TERMS OF EACH SERIES OF DEBT SECURITIES IN THE PROSPECTUS
SUPPLEMENT
The applicable prospectus supplement will describe the terms of any debt
securities being offered, including:
* the designation and aggregate principal amount;
* the maturity date;
* the interest rate, if any, and the method for calculating the interest
rate;
* the interest payment dates and the record dates for the interest
payments;
* any mandatory or optional redemption terms or prepayment, conversion,
sinking fund or exchangeability or convertibility provisions;
* any subordination provisions relating to the debt securities;
* the places where the principal and interest will be payable;
* the denominations the debt securities will be issued in;
* whether the debt securities will be issued in the form of global
securities or certificates;
* additional provisions, if any, relating to the defeasance and covenant
defeasance of the debt securities;
* any applicable material federal tax consequences;
* the dates on which a premium, if any, will be payable;
* our right, if any, to defer payment of interest and the maximum length
of such deferral period;
* any listing on a securities exchange;
* if convertible into common stock, the terms on which such debt
securities are convertible;
* the terms of each guarantee of the payment of principal, interest and
any premium on debt securities of the series;
* the terms, if any, of the transfer, mortgage, pledge, or assignment as
security for the debt securities of the series of any properties,
assets, moneys, proceeds, securities or other collateral, including
whether certain provisions of the Trust Indenture Act are applicable,
and any corresponding changes to provisions of the indenture as
currently in effect;
* the initial public offering price; and
* other specific terms, including covenants and the events of default
provided for with respect to the debt securities.
Debt securities may bear interest at a fixed rate or a floating rate, or
may not bear interest. Debt securities bearing no interest or interest at
a rate that at the time of issuance is below the prevailing market rate may
be sold at a discount (which may be significant) below their stated
principal amount. We will describe in the applicable prospectus supplement
special United States federal income tax considerations applicable to any
discounted debt securities or to debt securities issued at par that are
treated as having been issued at a discount for United States federal
income tax purposes.
COVENANTS
With respect to each series of debt securities, we will be required to:
* pay the principal, interest and any premium on the debt securities
when due;
* maintain a place of payment;
* deliver a report to the trustee at the end of each fiscal year
reviewing our obligations under the indenture; and
* deposit sufficient funds with any paying agent on or before the due
date for any principal, interest or any premium.
In addition, the supplemental indenture for any particular series of debt
securities may contain covenants limiting:
* the incurrence of additional debt (including guarantees) by us and our
subsidiaries;
* the making of certain payments by us and our subsidiaries;
* the issuance of other securities by our subsidiaries;
* a change of control;
* certain mergers and consolidations involving us and our subsidiaries;
* our business activities and those of our subsidiaries;
* asset dispositions;
* the incurrence of liens; and
* transactions with our subsidiaries and other affiliates.
We will describe any additional covenants in the applicable prospectus
supplement.
RANKING; SUBORDINATION
Unless we specify otherwise in the applicable prospectus supplement, the
debt securities will not be secured by any of our property or assets.
Accordingly, your ownership of debt securities means you will be one of our
unsecured creditors.
Under the subordinated indenture, payment of the principal, interest and
any premium on the subordinated debt securities will generally be
subordinated and junior in right of payment to the prior payment in full of
all of our senior debt. The subordinated indenture will provide that we
may not make payments of principal, interest and any premium on the
subordinated debt securities in the event:
* of any insolvency, bankruptcy or similar proceeding involving us or
our property; or
* we fail to pay the principal, interest, any premium or any other
amounts on any senior debt when such amounts are due.
The subordinated indenture may not limit the amount of senior debt that
we may incur.
Our "senior debt" for purposes of the subordinated indenture will include
all notes or other unsecured evidences of indebtedness, including
guarantees given by us, for money borrowed by us, not expressly subordinate
or junior or right in payment to our other indebtedness.
CONVERTIBLE DEBT SECURITIES
We may issue debt securities from time to time that are convertible into
our common stock. If you hold convertible debt securities, you will be
permitted at certain times specified in the applicable prospectus
supplement to convert your debt securities into common stock for a
specified price. We will describe the conversion price (or the method for
determining the conversion price) and the other terms applicable to
conversion in the applicable prospectus supplement.
GUARANTEES
One or more of our subsidiaries, as guarantors, will, jointly and
severally, fully and unconditionally guarantee our obligations under the
debt securities on an equal and ratable basis subject to the limitation
described in the next paragraph. In addition, any supplemental indenture
may require us to cause any domestic entity that becomes one of our
subsidiaries after the date of any supplemental indenture to enter into a
supplemental indenture pursuant to which such subsidiary shall agree to
guarantee our obligations under the debt securities. If we default in
payment of the principal, interest or any premium on such debt securities,
the guarantors, jointly and severally, will be unconditionally obligated to
duly and punctually make such payments.
Each guarantor's obligations will be limited to the maximum amount that
(after giving effect to all other contingent and fixed liabilities of such
guarantor any collections from, or payments made by or on behalf of, any
other guarantors) will result in the obligations of such guarantor under
the guarantee not constituting a fraudulent conveyance or fraudulent
transfer under Federal or state law. Each guarantor that makes a payment
or distribution under its guarantee shall be entitled to contribution from
each other guarantor in a pro rata amount based on the net assets of each
guarantor.
Guarantees of senior debt securities (including the payment of principal,
interest and any premium on such debt securities) will rank pari passu in
right of payment with all other unsecured and unsubordinated indebtedness
of the guarantor and will rank senior in right of payment to all
subordinated indebtedness of such guarantor. Guarantees of subordinated
debt securities will generally be subordinated and junior in right of
payment to the prior payment in full of all senior indebtedness of the
guarantor.
The prospectus supplement for a particular issue of debt securities will
describe the subsidiary guarantors and any additional material terms of the
guarantees.
REGISTRATION, TRANSFER, PAYMENT AND PAYING AGENT
We may issue the debt securities in registered form without coupons or in
the form of one or more global securities, as described below under the
heading "Global Securities." Unless we specify otherwise in the prospectus
supplement, registered securities will be issued only in denominations of
$1,000 or any integral multiple of $1,000. Global securities will be
issued in a denomination equal to the total principal amount of outstanding
debt securities of the series represented by the global security.
You may present registered securities for exchange or transfer at the
corporate trust office of the trustee or at any other office or agency
maintained by us for such purpose, without payment of any service charge
except for any tax or governmental charge.
We will pay principal and any premium and interest on registered securities
at the corporate trust office of the trustee or at any other office or
agency maintained by us for such purpose. We may choose to make any
interest payment on a registered security (1) by check mailed to the
address of the holder as such address shall appear in the register or (2)
if provided in the prospectus supplement, by wire transfer to an account
maintained by the holder as specified in the register. We will make
interest payments to the person in whose name the debt security is
registered at the close of business on the day we specify.
GLOBAL SECURITIES
We may issue the debt securities in whole or in part in the form of one or
more global securities. A global security is a security, typically held by
a depositary such as the Depository Trust Company, that represents the
beneficial interests of a number of purchasers of such security. We may
issue the global securities in either registered or bearer form and in
either temporary or permanent form. We will deposit global securities with
the depositary identified in the prospectus supplement. Unless it is
exchanged in whole or in part for debt securities in definitive form, a
global certificate may generally be transferred only as a whole unless it
is being transferred to certain nominees of the depositary.
We will describe the specific terms of the depositary arrangement with
respect to a series of debt securities in a prospectus supplement. We
expect that the following provisions will generally apply to depositary
arrangements.
After we issue a global security, the depositary will credit on its book-
entry registration and transfer system the respective principal amounts of
the debt securities represented by such global security to the accounts of
persons that have accounts with such depositary ("participants"). The
underwriters or agents participating in the distribution of the debt
securities will designate the accounts to be credited. If we offer and
sell the debt securities directly or through agents, either we or our
agents will designate the accounts. Ownership of beneficial interests in a
global security will be limited to participants or persons that may hold
interests through participants. Ownership of beneficial interests in the
global security will be shown on, and the transfer of that ownership will
be effected only through, records maintained by the depositary and its
participants.
We and the trustee will treat the depositary or its nominee as the sole
owner or holder of the debt securities represented by a global security.
Except as set forth below, owners of beneficial interests in a global
security will not be entitled to have the debt securities represented by
such global security registered in their names, will not receive or be
entitled to receive physical delivery of such debt securities in definitive
form and will not be considered the owners or holders of the debt
securities. The laws of some states require that certain purchasers of
securities take physical delivery of the securities. Such laws may impair
the ability to transfer beneficial interests in a global security.
Principal, any premium and any interest payments on debt securities
represented by a global security registered in the name of a depositary or
its nominee will be made to such depositary or its nominee as the
registered owner of such global security.
We expect that the depositary or its nominee, upon receipt of any payments,
will immediately credit participant's accounts with payments in amounts
proportionate to their respective beneficial interests in the principal
amount of the global security as shown on the depositary's or its nominee's
records. We also expect that payments by participants to owners of
beneficial interest in the global security will be governed by standing
instructions and customary practices, as is the case with the securities
held for the accounts of customers registered in "street names" and will be
the responsibility of such participants.
If the depositary is at any time unwilling or unable to continue as
depositary and we do not appoint a successor depositary within ninety days,
we will issue individual debt securities in exchange for such global
security. In addition, we may at any time in our sole discretion determine
not to have any of the debt securities of a series represented by global
securities and, in such event, will issue debt securities of such series in
exchange for such global security.
Neither we, the trustee nor any paying agent will have any responsibility
or liability for any aspect of the records relating to or payments made on
account of beneficial ownership interests in such global security or for
maintaining, supervising or reviewing any records relating to such
beneficial ownership interests. No such person will be liable for any
delay by the depositary or any of its participants in identifying the
owners of beneficial interests in a global security, and we, the trustee
and any paying agent may conclusively rely on instructions from the
depositary or its nominee for all purposes.
CONSOLIDATION, MERGER OR SALE OF ASSETS
The indentures will generally permit a consolidation or merger between us
and another corporation or other entity. They will also permit the sale or
lease by us of all or substantially all of our property and assets. If
this happens, the remaining or acquiring corporation or other entity shall
assume all of our responsibilities and liabilities under the indentures,
including the payment of all amounts due on the debt securities and
performance of the covenants in the indentures.
We are only permitted to consolidate or merge with or into any other entity
or sell all or substantially all of our assets according to the terms and
conditions of the indentures and any supplemental indentures. The
remaining or acquiring entity will be substituted for us in the indentures
and any supplemental indentures with the same effect as if it had been an
original party thereto. Thereafter, the successor entity may exercise our
rights and powers under the indentures, in our name or in its own name.
Any act or proceeding required or permitted to be done by our board of
directors or any of our officers may be done by the board of officers of
the successor entity. If we consolidate or merge with or into any other
entity or sell all or substantially all of our assets, we shall be released
from all our liabilities and obligations under the indentures and under the
debt securities.
EVENTS OF DEFAULT
Unless we state otherwise in an applicable prospectus supplement, an "event
of default" with respect to each series of debt securities means any of the
following:
* failure to pay interest on any debt security of that series for 30
days;
* failure to pay the principal or any premium on any debt security of
that series when due;
* failure to deposit any sinking fund payment when due;
* failure to comply with the provisions of the related indenture or any
supplemental indenture relating to consolidations, mergers and sales of
assets;
* failure to perform any other covenant with respect to that series in
the related indenture or any supplemental indenture that continues for
60 days after being given written notice;
* certain events in bankruptcy, insolvency or reorganization of us or a
significant subsidiary;
* the entry of a judgment in excess of the amount specified in the
related indenture or any supplemental indenture against us or such
significant subsidiary which is not covered by insurance and not
discharged, waived or stayed; or
* any other event of default included in the related indenture or any
supplemental indenture.
An event of default for a particular series of debt securities does not
necessarily constitute an event of default for any other series of debt
securities.
The consequences of an event of default, and the remedies available under
the indentures or any supplemental indentures, will vary depending upon the
type of event of default that has occurred.
If an event of default relating to certain events in bankruptcy, insolvency
or reorganization of us or a significant subsidiary occurs and continues,
the entire principal of all the debt securities of all series will be due
and payable immediately.
If any other event of default for any series of debt securities occurs and
continues, the trustee or the holders of a specified percentage of the
aggregate principal amount of the debt securities of the series may declare
the entire principal of all the debt securities of that series to be due
and payable immediately. If this happens, subject to certain conditions,
the holders of a majority of the aggregate principal amount of the debt
securities of that series can void the declaration. The trustee may
withhold notice to the holders of debt securities of any default (except in
the payment of principal or interest or in the making of any sinking fund
payment) if it considers such withholding of notice to be in the interests
of the holders.
Other than its duties in case of a default, a trustee is not obligated to
exercise any of its rights or powers under the indentures or any
supplemental indentures at the request, order or direction of any holders,
unless the holders offer the trustee reasonable indemnity. If they provide
this reasonable indemnification, the holders of a specified percentage of
the aggregate principal amount of any series of debt securities may direct
the time, method and place of conducting any proceeding or any remedy
available to the trustee, or exercising any power conferred upon the
trustee, for any series of debt securities.
No holder of any debt security can institute any action or proceeding with
respect to an indenture or any supplemental indenture unless the holder
gives written notice of an event of default to the trustee, the holders of
a specified percentage of the aggregate principal amount of the outstanding
debt securities of the applicable series shall have requested the trustee
to institute the action or proceeding and has appropriately indemnified the
trustee, and the trustee has failed to institute the action or proceeding
within a specified time period.
DISCHARGING OUR OBLIGATIONS
Except as may otherwise be set forth in any prospectus supplement, we may
choose to either discharge our obligations on the debt securities of any
series in a "legal defeasance" or release ourselves from our covenant
restrictions on the debt securities of any series in a "covenant
defeasance." We may do so at any time prior to the stated maturity or
redemption of the debt securities of the series if, among other conditions:
* we deposit with the trustee sufficient cash or U.S. government
securities to pay the principal, interest, any premium and any other
sums due to the stated maturity date or redemption date of the debt
securities of the series; and
* we provide an opinion of our counsel that holders of the debt
securities will not be affected for U.S. federal income tax purposes
by the defeasance.
If we choose the legal defeasance option, holders of the debt securities
of that series will not be entitled to the benefits of the related indenture
except for registration of transfer and exchange of debt securities,
replacement of lost, stolen or mutilated debt securities, any required
conversion or exchange of debt securities, any required sinking fund
payments and receipt of principal and interest on the original stated due
dates or specified redemption dates.
MODIFICATION AND WAIVER
Unless we state otherwise in the applicable prospectus supplement, the
indentures and each supplemental indenture will provide that we and the
trustee may enter into supplemental indentures without the consent of the
holders of debt securities to:
* secure the debt securities;
* evidence the assumption of our obligations by a successor entity;
* add covenants or events of default for the protection of the holders
of any debt securities;
* establish the form or terms of debt securities of any series;
* provide for uncertificated securities in addition to certificated
securities (so long as the uncertificated securities are in registered
form for tax purposes);
* evidence the acceptance of appointment by a successor trustee;
* in the case of subordinated debt securities, to make any change to the
provisions of the subordinated indenture relating to subordination that
would limit or terminate the benefits available to any holder of senior
debt under such provisions;
* cure any ambiguity or correct any inconsistency in the indenture or
amend the indenture in any other manner which we may deem necessary or
desirable, if such action will not adversely affect the interests of
the holders of debt securities; or
* make any change to comply with any requirement of the Securities and
Exchange Commission relating to the qualification of the indenture under
the Trust Indenture Act of 1939.
Unless we state otherwise in the applicable prospectus supplement, each
indenture and any supplemental indenture will also contain provisions
permitting us and the trustee to modify the provisions of the indenture and
any supplemental indenture or modify in any manner the rights of the
holders of the debt securities of each such series if we obtain the consent
of the holders of a majority in outstanding principal amount of debt
securities of all affected series (voting as a single class). However, if
you hold debt securities, we must get your consent to make any change that
would:
* extend the final maturity of your debt securities;
* reduce the principal amount of your debt securities;
* reduce or alter the method of computation of any amount payable in
respect of interest on your debt securities;
* extend the time for payment of interest on your debt securities;
* reduce or alter the method of computation of any amount payable on
redemption of your debt securities;
* extend the time for any redemption payment on your debt securities;
* reduce the amount payable upon acceleration of your debt securities;
* in the case of subordinated debt securities, make any change in the
subordination provisions of the subordinated indenture that adversely
affects your rights under such provisions;
* impair your right to institute suit for the enforcement of any
conversion or any payment on any of your debt securities when due or
materially and adversely affect any of your conversion rights; or
* reduce the percentage in principal amount of debt securities of a series
required to make other modifications to the indenture.
THE TRUSTEE
The Trust Indenture Act contains limitations on the rights of the trustee
under an indenture, should it become a creditor of ours, to obtain payment
of claims in certain cases or to realize on certain property received by it
in respect of any such claims, as security or otherwise. The trustee is
permitted to engage in other transactions with us and our subsidiaries from
time to time, provided that if the trustee acquires any conflicting
interest it must eliminate such conflict upon the occurrence of an event of
default under the related indenture, or else resign.
GOVERNING LAW
The indentures and the debt securities will be governed by and construed in
accordance with the laws of the State of New York.
SELLING STOCKHOLDERS
In addition to covering the offering of common stock by us, this
prospectus covers the offering for resale of common stock by the selling
stockholders. This includes shares owned by our largest stockholders,
Highwood Partners, L.P. and Westgate International, L.P., should they
decide to sell some of their shares.
The prospectus supplement for any offering of the common stock by
selling stockholders will include the following information:
* the names of the selling stockholders;
* the nature of any position, office or other material relationship which
any of the selling stockholders will have had during the prior three
years with us or any of our predecessors or affiliates;
* the number of shares held by each of the selling stockholders;
* the percentage of the common stock held by each of the selling
stockholders; and
* the number of shares of the common stock offered by each of the selling
stockholders.
PLAN OF DISTRIBUTION
DISTRIBUTIONS BY THE COMPANY
We may sell the securities offered by this prospectus directly to one or
more purchasers or to or through agents, underwriters or dealers.
In the accompanying prospectus supplement we will identify or
describe:
* any underwriters, dealers or agents;
* their compensation;
* the net proceeds to be received by us;
* the purchase price of the securities;
* the initial public offering price of the securities; and
* any exchange on which the securities are listed.
AGENTS. We may designate agents who agree to use their reasonable efforts
to solicit purchases for the period of their appointment to sell securities
on a continuing basis.
UNDERWRITERS. If we use underwriters for a sale of securities, the
underwriters will acquire the securities for their own account. The
underwriters may resell the securities in one or more transactions,
including negotiated transactions, at a fixed public offering price or at
varying prices determined at the time of sale. Any initial public offering
price and any discounts or concessions allowed or re-allowed or paid to
dealers may be changed from time to time.
DIRECT SALES. We may also sell securities directly to one or more
purchasers without using underwriters or agents.
Underwriters, dealers, and agents that participate in the distribution of
the securities may be underwriters as defined in the Securities Act of
1933, and any discounts or commissions they receive from us and any profit
on their resale of the debt securities may be treated as underwriting
discounts and commissions under the Securities Act. We may have agreements
with the underwriters, dealers and agents to indemnify them against certain
civil liabilities, including liabilities under the Securities Act.
Underwriters, dealers and agents may engage in transactions with or perform
services for us in the ordinary course of their businesses.
DISTRIBUTIONS BY SELLING STOCKHOLDERS
The selling stockholders may sell shares of our common stock directly,
through broker-dealers acting as principal or agent or pursuant to a
distribution by one or more underwriters on a firm commitment or best
effort basis. The selling stockholders may sell all or part of their
shares in one or more transactions at prices at or related to the then-
current market price or at negotiated prices. The selling stockholders
will determine the specific offering price of the shares from time to time
that, at that time, may be higher or lower than the market price of our
common stock on the Nasdaq National Market.
To the extent required by a particular offering in a prospectus
supplement or, if appropriate, a post-effective amendment, we will set
forth:
* any underwriters, dealers or agents;
* their compensation;
* the number of shares of common stock to be sold; and
* the public offering price of the shares of common stock to be
sold.
The applicable prospectus supplement will also set forth the extent to
which we will have agreed to bear fees and expenses of the selling
stockholders in connection with the registration of the common stock being
offered hereby by them. We may, if so indicated in the applicable
prospectus supplement, agree to indemnify selling stockholders against
certain civil liabilities, including liabilities under the Securities Act.
In connection with any underwritten offering, underwriters and their
agents may receive compensation in the form of discounts, commissions or
concessions from the selling stockholders or from purchasers of shares for
whom they act as agents. Underwriters may sell shares to or through
dealers, and such dealers may receive compensation in the form of
discounts, commissions or concessions from the underwriters and/or
commissions from the purchasers for whom they may act as agents. The
selling stockholders and any underwriters, dealers or agents participating
in the distribution of the shares of our common stock may be deemed to be
"underwriters" within the meaning of the Securities Act of 1933, and any
profit from the sale of such shares by the selling stockholders and any
compensation received by any underwriter, broker-dealer or agent may be
deemed to be underwriting discounts under the Securities Act.
LEGAL MATTERS
The validity of the securities offered by this prospecus will be passed
upon for us by Jones, Walker, Waechter, Poitevent, Carre`re & Dene`gre,
L.L.P., New Orleans, Louisiana and for any underwriters, dealers or agents
by counsel which we will name in the applicable prospectus supplement.
EXPERTS
The financial statements incorporated by reference in this prospectus and
elsewhere in the registration statement have been audited by Arthur
Andersen LLP, independent certified public accountants, as indicated in
their reports with respect thereto, and are included herein in reliance
upon the authority of said firm as experts in accounting and auditing in
giving said reports.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated fees and expenses payable by us in connection with the
issuance and distribution of the common stock of Horizon Offshore, Inc.
(the "Company") registered hereunder are as follows:
Securities and Exchange Commission
registration fee $ 51,306
*Legal fees and expenses 60,000
*Accounting fees and expenses 30,000
*Blue Sky fees and expenses 5,000
*Indenture trustees' fees and expenses 10,000
*Printing 40,000
*Miscellaneous 3,694
---------
Total $ 200,000
=========
*Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Certificate of Incorporation (the "Certificate") contains
provisions eliminating the personal liability of the directors to the
Company and its stockholders for monetary damages for breaches of their
fiduciary duties as directors to the fullest extent permitted by the
Delaware General Corporation Law. By virtue of these provisions, under
current Delaware law a director of the Company will not be personally
liable for monetary damages for a breach of his or her fiduciary duty
except for liability for (a) a breach of his or her duty of loyalty to the
Company or to its stockholders, (b) acts or omissions not in good faith or
that involve intentional misconduct or a knowing violation of law, (c)
dividends or stock repurchases or redemptions that are unlawful under
Delaware law and (d) any transaction from which he or she receives an
improper personal benefit. In addition, the Certificate provides that if a
Delaware law is amended to authorize the further elimination or limitation
of the liability of a director, then the liability of the directors shall
be eliminated or limited to the fullest extent permitted by Delaware law,
as amended. These provisions pertain only to breaches of duty by
directors as directors and not in any other corporate capacity, such as
officers, and limit liability only for breaches of fiduciary duties under
Delaware corporate law and not for violations of other laws such as the
federal securities laws.
The Company's By-laws require the Company to indemnify its directors and
officers against certain expenses and costs, judgments, settlements and
fines incurred in the defense of any claim, including any claim brought by
or in the right of the Company, to which they were made parties by reason
of being or having been directors and officers, subject to certain
conditions and limitations.
In addition, each of the Company's directors has entered into an indemnity
agreement with the Company, pursuant to which the Company has agreed under
certain circumstances to purchase and maintain directors' and officers'
liability insurance. The agreements also provide that the Company will
indemnify the directors against any costs and expenses, judgments,
settlements and fines incurred in connection with any claim involving a
director by reason of his position as director that are in excess of the
coverage provided by such insurance, provided that the director meets
certain standards of conduct. Under the indemnity agreements, the Company
is not required to purchase and maintain directors' and officers' liability
insurance if it is not reasonably available or, in the reasonable judgment
of the Board of Directors, there is insufficient benefit to the Company from
the insurance.
ITEM 16. EXHIBITS.
3.1 Amended and Restated Certificate of Incorporation of the Company
(incorporated herein by reference to Exhibit 3.1 of the Company's
registration statement on Form S-1, File No. 333-43965, originally
filed with the Commission on January 9, 1998).
3.2 By-laws of the Company, as amended (incorporated herein by reference to
Exhibit 3.2 of the Company's registration statement on Form S-1, File
No. 333-43965, originally filed with the Commission on January 9,
1998).
4.1 Specimen Common Stock certificate (incorporated herein by reference to
Exhibit 4.2 of the Company's registration statement on Form S-1, File
No. 333-43965, originally filed with the Commission on January 9,
1998).
4.2 FORM OF SENIOR INDENTURE.*
4.3 FORM OF SENIOR DEBT SECURITIES (INCLUDED IN EXHIBIT 4.6).*
4.4 FORM OF SUBORDINATED INDENTURE.*
4.5 FORM OF SUBORDINATED DEBT SECURITIES (INCLUDED IN EXHIBIT 4.8).*
4.6 FORM OF DEPOSIT AGREEMENT.*
4.7 FORM DEPOSITARY RECEIPT.*
5.1 Opinion of Jones, Walker, Waechter, Poitevent, Carre`re &
Dene`gre, L.L.P regarding legality of securities being registered.
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Jones, Walker, Waechter, Poitevent, Carre`re &
Dene`gre, L.L.P (included in Exhibit 5.1)
24.1 Power of Attorney (included in the Signature Page to this Registration
Statement).
__________
*To be filed by amendment or subsequently incorporated into this registration
statement.
ITEM 17. Undertakings.
(a) Each of the undersigned registrants 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 this 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 this registration statement;
notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the SEC pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in
the maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this registration
statement or any material change to such information in this
registration statement;
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 p aragraphs is contained in periodic
reports filed with or furnished to the SEC by the registrant pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by r eference in this registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(b) Each of the undersigned registrants hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933,
each filing of the Company's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 that is incorporated
by reference in this registration statement shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions,
or otherwise, each of the registrants has been advised that in the opinion
of the SEC such indemnification is against public policy as expressed in
the Securities Act of 1933 and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, each
of the registrants will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
(d) Each of the undersigned registrants 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 Trust Indenture Act.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in Houston, Texas, on October 3, 2000.
HORIZON OFFSHORE, INC.
By: /S/ DAVID W. SHARP
--------------------------
David W. Sharp
Executive Vice President and
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints each of David W. Sharp and Bill J. Lam, or
any one of them, his true and lawful attorney-in-fact and agent, with full
power of substitution, for him and in his name, place and stead, in any and
all capacities, to sign any and all amendments (including post-effective
amendments) to this registration statement, and to file the same with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and
thing requisite and ratifying and confirming all that said attorney-in-fact
and agent or his substitute or substitutes may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates listed:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/James Devine
____________________________ Chairman of the Board October 3, 2000
James Devine
/s/Bill J. Lam President, Chief Executive Officer October 3, 2000
_____________________________ and Director
Bill J. Lam
/s/David W. Sharp Chief Financial Officer October 3, 2000
_____________________________ (Principal Financial and
David W. Sharp Accounting Officer)
/s/Edward L. Moses, Jr.
_____________________________ Director October 3, 2000
Edward L. Moses, Jr.
/s/Jonathan D. Pollock
_____________________________ Director October 3, 2000
Jonathan D. Pollock
/s/Michael R. Latina
_____________________________ Director October 3, 2000
Michael R. Latina
/s/Derek Leach
_____________________________ Director October 3, 2000
Derek Leach
</TABLE>
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 Houston, Texas, on October 3, 2000.
HORIZON VESSELS, INC.
HORIZON OFFSHORE CONTRACTORS, INC.
HORIZON SUBSEA SERVICES, INC.
By: /S/DAVID W. SHARP
---------------------------------
David W. Sharp
Executive Vice President and
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints each of David W. Sharp and Bill J. Lam, or
any one of them, his true and lawful attorney-in-fact and agent, with full
power of substitution, for him and in his name, place and stead, in any
and all capacities, to sign any and all amendments (including post-effective
amendments) to this registration statement, and to file the same with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and ratifying and confirming all that said attorney-in-fact and
agent or his substitute or substitutes may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates listed:
<TABLE>
<CAPTION>
<S> <C> <C>
/s/ Bill J. Lam President, Chief Executive Officer October 3, 2000
________________________ and Director
Bill J. Lam
/s/ David W. Sharp Chief Financial Officer October 3, 2000
_______________________ (Principal Financial and
David W. Sharp Accounting Officer)
</TABLE>
