<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 21, 1995
REGISTRATION NO. 33-60089
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
DEL WEBB CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
DELAWARE 86-0077724
(STATE OR OTHER JURISDICTION OF (IRS EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
</TABLE>
6001 24TH STREET
PHOENIX, ARIZONA 85016
(ADDRESS, INCLUDING ZIP CODE, OF PRINCIPAL EXECUTIVE OFFICES OF REGISTRANT)
REGISTRANT'S TELEPHONE NUMBER INCLUDING AREA CODE: (602) 808-8000
------------------------
ROBERTSON C. JONES, ESQ.
VICE PRESIDENT AND GENERAL COUNSEL
DEL WEBB CORPORATION
6001 24TH STREET
PHOENIX, ARIZONA 85016
(602) 808-8000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE OF PROCESS)
Copy to:
STEVEN MEIERS, ESQ.
GIBSON, DUNN & CRUTCHER
333 SOUTH GRAND AVENUE
LOS ANGELES, CALIFORNIA 90071
Approximate date of commencement of proposed sale to the public:
AS SOON AS PRACTICABLE AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
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 from 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. /X/
(The Facing Page is continued on the following page)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C> <C> <C>
==================================================================================================
PROPOSED
PROPOSED MAXIMUM
MAXIMUM AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PER UNIT(1) PRICE(1) FEE
- --------------------------------------------------------------------------------------------------
Debt Securities................... (2) 100%(2) (2) see below
Preferred Stock................... (2),(3) (2) (2) see below
Depositary Shares................. (2),(4) (2) (2) see below
Common Stock...................... (2),(5) (2) (2) see below
Stock Purchase Warrants........... (2),(6) (2) (2) see below
Totals................... $200,000,000(2), $68,966
(3),(4),(5),(6)
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</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
(2) This Registration Statement covers the principal amount of Debt Securities
(as to Debt Securities offered at an original issue discount, the offering
price thereof) and, subject to notes 3, 4, 5 and 6, the number of other
Securities listed above as may from time to time be issued at indeterminate
prices, but with an aggregate initial offering price for all such Debt
Securities and Other Securities not to exceed $200,000,000. The Registration
Statement also includes Debt Securities issued by the Registrant that may be
issued in exchange for such Preferred Stock ("Additional Debt Securities"),
provided that the Additional Debt Securities that may be issued in exchange
for such Preferred Stock will, at the time of issuance, be either (i)
covered by a then-effective Registration Statement, if required, or (ii)
issuable without registration by virtue of the exemption contained in
Section 3(a)(9) of the Securities Act of 1933, as amended (or, if
applicable, another then-available exemption). In addition and without
limitation, the Prefered Stock covered by this Registration Statement may
not be issued in exchange for outstanding securities or in any other
transaction in which such securities are required to be covered by a
registration statement on Form S-4 or as to which this Form S-3 Registration
Statement may not be used for any other reason. The Amount to be Registered,
Proposed Maximum Offering Price Per Unit, Proposed Maximum Offering Price
and Amount of Registration Fee with respect to such Preferred Stock includes
such Additional Debt Securities.
(3) Includes Preferred Stock issued other than on conversion of Debt Securities
or exercise of Stock Purchase Warrants. Also includes such presently
indeterminate number of additional shares of Preferred Stock ("Additional
Preferred Stock") as may be issued on (i) conversion of the Debt Securities,
if and to the extent convertible into Preferred Stock, and (ii) exercise of
any Stock Purchase Warrants as may be issued, if and to the extent
exercisable for Preferred Stock. The Amount to be Registered, Proposed
Maximum Offering Price Per Unit, Proposed Maximum Aggregate Offering Price
and Amount of Registration Fee with respect to such Debt Securities and
Warrants include such Additional Preferred Stock.
(4) The Registration Statement covers such indeterminate number of Depositary
Shares as may be issued if the Registrant elects to offer fractional
interests in shares of some or all of the Preferred Stock. The Amount to be
Registered, Proposed Maximum Offering Price Per Unit, Proposed Maximum
Aggregate Offering Price and Amount of Registration Fee (i) with respect to
such Preferred Stock include such Depositary Shares and (ii) without
duplication, with respect to the Depositary Shares, include such Preferred
Stock.
(5) Includes Common Stock issued other than on conversion of Debt Securities,
conversion of Preferred Stock or exercise of Stock Purchase Warrants. Also
includes such presently indeterminate number of shares of additional Common
Stock ("Additional Common Stock") as may be issued on (i) conversion of the
Debt Securities, if and to the extent convertible into Common Stock, (ii)
conversion of any Preferred Stock as may be issued separately, on conversion
of Debt Securities or exercise of Stock Purchase Warrants, if and to the
extent such Preferred Stock is convertible into Common Stock or (iii)
exercise of any Stock Purchase Warrants as may be issued, if and to the
extent exercisable for Common Stock. The Amount to be Registered, Proposed
Maximum Offering Price Per Unit, Proposed Maximum Aggregate Offering Price
and Amount of Registration Fee with respect to such Debt Securities,
Preferred Stock and Stock Purchase Warrants include such Additional Common
Stock.
(6) Includes Stock Purchase Warrants which may be issued other than as part of
Units of Stock Purchase Warrants and other Securities. Also includes
additional Stock Purchase Warrants ("Additional Stock Purchase Warrants")
which may be offered as part of Units of Stock Purchase Warrants and other
Securities. The Amount to be Registered, Proposed Maximum Offering Price Per
Unit, Proposed Maximum Aggregate Offering Price and Amount of Registration
Fee with respect to such other Securities include such Additional Stock
Purchase Warrants.
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SUCH
SECTION 8(A), MAY DETERMINE.
<PAGE> 3
PROSPECTUS
$200,000,000
DEL WEBB CORPORATION
DEBT SECURITIES, PREFERRED STOCK, COMMON STOCK AND STOCK PURCHASE WARRANTS
------------------------
Del Webb Corporation (the "Company") may offer and issue from time to time
its: debt securities (the "Debt Securities") in one or more series, consisting
of debentures, notes or other evidences of indebtedness and having such prices
and terms as are determined at the time of sale; preferred stock, which may be
issued in one or more series (the "Preferred Stock"); common stock (the "Common
Stock"); and Stock Purchase Warrants to purchase Preferred Stock or Common Stock
(the "Warrants" and, together with the Debt Securities, Preferred Stock and
Common Stock, the "Securities"). The Securities may be issued as Units (the
"Units") and in any combination, the Debt Securities may or may not be
convertible into Preferred Stock or Common Stock and the Preferred Stock may or
may not be convertible into Common Stock or exchangeable for Debt Securities.
The accompanying Prospectus Supplement sets forth: the ranking of the Debt
Securities covered thereby as senior, senior subordinated or subordinated
(including junior subordinated) and the specific designation, aggregate
principal amount, purchase price, maturity, interest rate (or manner of
calculation thereof), time of payment of interest (if any), right to defer
interest (if any), convertibility (if any) and, if applicable, Securities into
which convertible and conversion price and any other specific terms of the Debt
Securities; the rights, privileges and preferences of the Preferred Stock
covered thereby, including whether and on what terms such Preferred Stock may be
convertible into Common Stock or exchangeable for Debt Securities, and whether
the Company has elected to offer any Preferred Stock in the form of depositary
shares; the Preferred Stock or Common Stock for which any Warrants covered
thereby will be exercisable and the exercise price; whether the Securities
covered thereby will be issued in Units and, if so, the Securities which are
part thereof; whether the Securities covered thereby are listed on a securities
exchange; and the name of and compensation to each dealer, underwriter or agent
(if any) involved in the sale of the Securities covered thereby.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT PASSED ON OR ENDORSED
THE MERITS OF THIS OFFERING. ANY REPRESENTATION TO THE
CONTRARY IS UNLAWFUL.
------------------------
Prior to issuance there will have been no market for the Debt Securities,
Preferred Stock or Warrants, and there can be no assurance that a secondary
market for the Debt Securities, Preferred Stock or Warrants will develop. This
Prospectus may not be used to consummate sales of Securities unless accompanied
by a Prospectus Supplement. The Securities may be offered through one or more
different plans of distribution, including offerings through underwriters. See
"Plan of Distribution."
------------------------
The date of this Prospectus is July , 1995
<PAGE> 4
IN CONNECTION WITH THE OFFERINGS OF THE DEBT SECURITIES, PREFERRED STOCK,
COMMON STOCK OR WARRANTS, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT TRANSACTIONS
WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE DEBT SECURITIES, PREFERRED
STOCK, COMMON STOCK OR WARRANTS, OR ANY OF THEM, AT LEVELS ABOVE THOSE WHICH
MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON
THE NEW YORK STOCK EXCHANGE, IN THE OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH
STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement (together with all amendments and
exhibits thereto, the "Registration Statement") under the Securities Act of
1933, as amended (the "Securities Act"), with respect to the Debt Securities,
Preferred Stock, Common Stock and Warrants. This Prospectus, which constitutes
part of the Registration Statement, does not contain all of the information set
forth in the Registration Statement, certain parts of which are omitted in
accordance with the Rules and Regulations of the Commission. For further
information with respect to the Company, reference is made to the Registration
Statement.
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Commission. The Registration Statement, as well as such reports, proxy
statements and other information filed by the Company, may be inspected and
copied (at prescribed rates) at the public reference facilities maintained by
the Commission at 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549 and
at the Commission's Regional Offices located at Northwestern Atrium Center,
Suite 1400, 500 West Madison Street, Chicago, Illinois 60661 and 7 World Trade
Center, 13th Floor, New York, New York 10048. In addition, such reports, proxy
statements and other information concerning the Company may also be inspected at
the offices of the New York Stock Exchange, 20 Broad Street, New York, New York
10005 and the Pacific Stock Exchange, 115 Sansome Street, Suite 1104, San
Francisco, California 94104.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for its fiscal year ended June 30,
1994 and its Quarterly Reports on Form 10-Q for the Quarters ended September 30,
1994, December 31, 1994 and March 31, 1995, which have been filed with the
Commission, are incorporated in this Prospectus by reference. Pages 15-21 of the
Company's proxy statement for the annual meeting of its shareholders held on
November 2, 1994, which is incorporated by reference in, and Exhibit 99.0 (the
Company's Amended and Restated Certificate of Incorporation) to, the Company's
Quarterly Report on Form 10-Q for the Quarter ended December 31, 1994, are both
also specifically incorporated herein by reference. They contain a description
of and provisions with respect to the Common Stock and Preferred Stock of the
Company. All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering made hereby are incorporated by
reference in this Prospectus and made a part hereof from the date such documents
are filed.
Any statement contained herein or in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein,
in the Prospectus Supplement or in any subsequently filed document that also is
or is deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom a copy of
this Prospectus is delivered, upon the written or oral request of such person, a
copy of each document incorporated herein by reference (not including the
exhibits to those documents, unless the exhibits are specifically incorporated
by reference therein or herein). Requests for such copies should be directed to:
Del Webb Corporation, 6001 24th Street, Phoenix, Arizona 85016, Attention:
Secretary. Telephone requests may be directed to (602) 808-8000.
2
<PAGE> 5
THE COMPANY
Del Webb Corporation is one of the nation's leading developers of
age-restricted (age 55 and over) active adult communities, having built and sold
approximately 50,000 homes at its active adult Sun City communities over the
past 35 years. The Company currently offers homes for sale at eight communities,
each of which, except Terravita, is an active adult community: Sun City West
(near Phoenix), Sun City Tucson and Terravita (in Scottsdale) in Arizona; Sun
City Las Vegas in Nevada; Sun City Palm Springs and Sun City Roseville (near
Sacramento) in California; Sun City Hilton Head in South Carolina; and Sun City
Georgetown (near Austin), in Texas. The Company is in various stages of
developing two other Sun City active adult communities: Sun City McDonald Ranch
(near Las Vegas) in Nevada, and Sun City Grand, near Sun City West, in Arizona.
The Company designs, develops and markets these large-scale, master-planned
residential communities, controlling all phases of the master plan development
process from land selection through construction and selling homes. Within its
active adult communities, the Company is the exclusive developer of homes.
The Company also conducts conventional subdivision homebuilding operations
in the Phoenix, Tucson and Las Vegas areas and Southern California. The Company
is also in the preliminary development process for The Villages at Desert Hills,
a potential master-planned development near Phoenix, Arizona, located on
approximately 5,600 acres. However, development of this project remains subject
to a number of uncertainties and the planning, entitlement and permitting
processing is still in a relatively early stage.
The Company was incorporated in 1946 under Arizona law and reincorporated
in Delaware in 1994. The Company's principal executive offices are located at
6001 24th Street, Phoenix, Arizona 85016 and its telephone number is (602)
808-8000. The Company conducts substantially all of its activities through
subsidiaries and, as used in this Prospectus and the accompanying Prospectus
Supplement, the term the "Company" includes Del Webb Corporation and its
subsidiaries, unless the context indicates otherwise.
USE OF PROCEEDS
Unless otherwise set forth in the accompanying Prospectus Supplement, the
net proceeds from the sale of the Securities will be used to reduce outstanding
balances under the Company's revolving credit facility, to fund land
acquisitions and development of new projects and for general corporate purposes.
Amounts so repaid under the revolving credit facility may be reborrowed in the
future.
CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the consolidated ratio of earnings to fixed
charges for the Company for the periods indicated.
<TABLE>
<CAPTION>
NINE MONTHS
FISCAL YEAR ENDED JUNE 30, ENDED MARCH 31,
------------------------------------ ------------
1990 1991 1992 1993 1994 1994 1995
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed
charges (unaudited).................. 1.81x 1.38x 1.59x 1.63x 1.30x 1.19x 1.44x
</TABLE>
The ratio of earnings to fixed charges is calculated by dividing earnings
by fixed charges. For this purpose "earnings" means earnings (loss) from
continuing operations before income taxes plus (a) fixed charges and interest
amortized to cost of sales (including the proportionate share thereof of
unconsolidated affiliates and discontinued operations) minus (b) capitalized
interest (including the proportionate share thereof of unconsolidated affiliates
and discontinued
3
<PAGE> 6
operations). "Fixed charges" means total interest, whether capitalized or
expensed (including the proportionate share thereof of unconsolidated affiliates
and discontinued operations and the portion of rent expense representative of
interest costs), plus (i) debt-related fees and (ii) amortization of deferred
financing costs.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will constitute senior, senior subordinated or
subordinated (including, if applicable, junior subordinated) debt of the Company
and will be issued under a Senior Debt Indenture (the "Senior Debt Indenture"),
a Senior Subordinated Debt Indenture (the "Senior Subordinated Debt Indenture")
or a Subordinated Debt Securities Indenture (the "Subordinated Debt Indenture"),
in each case between the Company and a Trustee (the "Trustee"). The Senior Debt
Indenture, Senior Subordinated Debt Indenture and the Subordinated Debt
Indenture are sometimes referred to below individually as an "Indenture" and
collectively as the "Indentures." Unless otherwise stated in the Prospectus
Supplement, the Trustee under the first Indenture under which Debt Securities
will be issued will be The First National Bank of Boston. Unless otherwise
stated in the applicable Prospectus Supplement, The First National Bank of
Boston may also be the Trustee under more than one of the other Indentures. (See
"Concerning the Trustee.") The Debt Securities offered by this Prospectus and
the accompanying Prospectus Supplement are referred to below as the "Offered
Debt Securities." If and to the extent set forth in the accompanying Prospectus
Supplement, the Offered Debt Securities will be convertible into Preferred or
Common Stock of the Company or issued as part of Units of Offered Debt
Securities and other Securities. If the Offered Debt Securities are to be issued
as part of Units of Debt Securities and other Securities or may be issued in
exchange for Preferred Stock, the Prospectus Supplement will describe any
applicable material federal income tax consequences.
The following summaries of certain provisions of the Indentures and the
Debt Securities do not purport to be complete. Except to the extent set forth in
the Prospectus Supplement with respect to a particular issue of Debt Securities,
the Indentures are substantially identical, except for the provisions relating
to subordination, including the fact that senior subordinated Debt Securities
will rank senior to the subordinated Debt Securities.
GENERAL
The Indenture for the Offered Debt Securities will not limit the amount of
additional indebtedness the Company or any of its subsidiaries may incur, except
as may be provided in the accompanying Prospectus Supplement. The Debt
Securities will be unsecured senior, senior subordinated or subordinated
obligations of the Company, as set forth in the accompanying Prospectus
Supplement.
The Company is a holding company, which currently conducts its operations
through subsidiaries. In addition to the subordination described under
"Subordination of Senior Subordinated and Subordinated Debt Securities" below
and as may be described in the accompanying Prospectus Supplement, this
effectively subordinates the Debt Securities to all indebtedness (including
trade payables) of the Company's subsidiaries. Therefore, the Company's rights
and the rights of its creditors, including holders of Debt Securities, to
participate in the assets of any subsidiary upon the latter's liquidation or
recapitalization will be subject to the prior claims of the subsidiary's
creditors (including third persons who have the benefit of guarantees given by
the subsidiary), except to the extent that the Company may itself be a creditor
with recognized claims against the subsidiary. However, in that case the claims
of the Company would still be effectively junior to any indebtedness of the
subsidiary to the extent the holders of that indebtedness are entitled to the
benefit of security interests in the assets of the subsidiary, as well as to any
indebtedness of that subsidiary which is senior to any debt or other claims held
by the Company. In addition, the Company's $100 million of Senior Notes due 2000
and amounts which may from time to
4
<PAGE> 7
time be outstanding under the Company's current $175 million principal debt
facility, of which the Company is negotiating an increase to $300 million, are
guaranteed by subsidiaries of the Company that hold substantially all of its
consolidated assets. The Debt Securities, including any senior Debt Securities,
will not be so guaranteed. As a result, the holders of that other debt may have
a claim against the assets of the Company's subsidiaries before those assets are
available to make payments due on the Debt Securities.
Also, because the Company is a holding company, it is dependent on
dividends or other distributions from its subsidiaries to make payments on its
indebtedness, including the Debt Securities. Such dividends or other
distributions to the Company may be subject to state law, which can restrict the
ability of a corporation to pay dividends or make other distributions to its
shareholders and which protect the rights of creditors of a corporation,
including third persons who have the benefit of guarantees given by the
corporation, in the event of improperly made dividends or distributions, as well
as to present or future contractual or regulatory restrictions that could
materially restrict the ability of the subsidiaries to make such payments to the
Company. The accompanying Prospectus Supplement discloses, to the extent
material to the Company, any contractual restrictions on the ability of the
subsidiaries of the Company to make dividends, loans or advances to the Company
that exist at the date of that Prospectus Supplement. Except as may be described
in the accompanying Prospectus Supplement, the Indenture for the Offered Debt
Securities will not restrict the Company's ability to enter into contracts in
the future that limit the ability of the Company's subsidiaries to make
dividends, loans or advances to it. Payments to the Company from its
subsidiaries also are contingent upon the earnings of such subsidiaries and are
subject to various business considerations, such as the working capital needs of
the subsidiaries.
Reference is made to the accompanying Prospectus Supplement for the
following terms of and information relating to the Offered Debt Securities (to
the extent such terms are applicable to such Debt Securities): (a) the specific
designation, aggregate principal amount, purchase price and denomination; (b)
the date of maturity; (c) the interest rate or rates (or the method by which
such rate will be determined), if any; (d) the date from which interest will
accrue and dates on which any such interest will be payable; (e) the rights of
the Company to defer interest, if any; (f) the place or places where the
principal of, premium, if any, and interest, if any, on the Offered Debt
Securities will be payable; (g) whether the Offered Debt Securities are senior,
senior subordinated or subordinated (including junior subordinated) Debt
Securities; (h) any redemption, repayment or sinking fund provisions; (i) any
obligation of the Company to offer to purchase the Offered Debt Securities in
the event of a Change of Control (as defined) of the Company; (j) whether the
Offered Debt Securities are convertible into Preferred Stock or Common Stock
and, if so, the terms of the security into which they are convertible (see
"Description of Capital Stock"), the conversion price, other terms related to
conversion and any anti-dilution protections; (k) whether the Offered Debt
Securities will be sold as part of Units consisting of Offered Debt Securities
and other Securities; (l) any applicable material federal income tax
consequences; and (m) any other material specific terms of the Offered Debt
Securities, including any material additional events of default or covenants
provided for with respect to the Offered Debt Securities and any material terms
that may be required by or advisable under applicable laws or regulations.
Debt Securities will bear interest at a fixed rate or a floating rate. Debt
Securities bearing no interest or interest at a rate that at the time of
issuance is below the prevailing market rate or as part of Units consisting of
Debt Securities and other Securities may be sold or deemed to be sold at a
discount below their stated principal amount. With respect to any Debt
Securities as to which the Company has the right to defer interest, the holders
of such Debt Securities may be allocated interest income for federal and state
income tax purposes without receiving equivalent, or any, interest payments.
Except to the extent set forth under "Certain Federal Income Tax Consequences,"
material federal income tax considerations applicable to any such discounted
Debt Securities or to certain Debt Securities issued at par that are treated as
having been issued at a discount for federal income tax purposes will be
described in the Prospectus Supplement.
5
<PAGE> 8
GLOBAL DEBT SECURITIES
If any Debt Securities are represented by one or more Global Securities,
the applicable Prospectus Supplement will describe the terms of the depositary
arrangement with respect to such Global Securities.
SUBORDINATION OF SENIOR SUBORDINATED AND SUBORDINATED DEBT SECURITIES
The senior subordinated and subordinated Debt Securities will be
subordinate and junior in right of payment, to the extent and in the manner to
be set forth in the Indenture, to all "Senior Debt" of the Company. Except to
the extent set forth in the accompanying Prospectus Supplement, the Indenture
for the Offered Debt Securities that are senior subordinated or subordinated
Debt Securities will define "Senior Debt" as all present or future
"Indebtedness" (defined below) created, incurred, assumed or, to the extent
described below, guaranteed by the Company (and all renewals, extensions or
refundings thereof), unless the instrument under which such Indebtedness is
created, incurred, assumed or guaranteed provides that such Indebtedness is not
senior or superior in right of payment to the Offered Debt Securities in
question; provided, however, that Senior Debt shall not include (a) any
Indebtedness of the Company to any of its subsidiaries, (b) any trade payables
of the Company or (c) except to the extent set forth or referred to in the
accompanying Prospectus Supplement, guarantees by the Company of Indebtedness
outstanding at the date hereof or that may be outstanding in the future.
Each Senior Subordinated Debt Indenture will provide that the Company will
not issue any Indebtedness that is subordinated in right of payment to any
Senior Debt of the Company and is senior in right of payment to the Debt
Securities covered by the Senior Subordinated Debt Indenture. No Subordinated
Debt Indenture will contain a similar provision. Except as may otherwise be
provided in the accompanying Prospectus Supplement, "Indebtedness" will be
defined in the Indenture for the Offered Debt Securities to mean any
indebtedness of a person, contingent or otherwise, in respect of borrowed money
(whether or not the recourse of the lender is to the whole of the assets of such
person or only to a portion thereof), evidenced by bonds, notes, debentures or
similar instruments or letters of credit or representing the balance deferred
and unpaid of the purchase price of any property or interest therein (except any
such balance that constitutes a trade payable), all capitalized lease
obligations and all direct or indirect obligations that arise as a result of
claims under or drawings pursuant to surety, performance, completion or
maintenance bonds.
By reason of such subordination, in the event of dissolution, insolvency,
bankruptcy or other similar proceedings, upon any distribution of assets: (a)
holders of Senior Debt will be entitled to be paid in full before payments may
be made on senior subordinated and subordinated Debt Securities and the holders
of senior subordinated and subordinated Debt Securities will be required to pay
over their share of such distributions to the holders of Senior Debt until such
Senior Debt is paid in full (except to the extent, if at all, that holders of
senior subordinated and subordinated Debt Securities may receive securities that
are subordinated to the same extent the senior subordinated and subordinated
Debt Securities are subordinated to Senior Debt); (b) in addition, holders of
senior subordinated debt will be entitled to be paid in full before payments may
be made on subordinated Debt Securities and holders of subordinated Debt
Securities will be required to pay over their share of such distributions to the
holders of senior subordinated debt until such senior subordinated debt is paid
in full (except to the extent, if at all, that holders of subordinated Debt
Securities may receive securities that are subordinated to the same extent the
subordinated Debt Securities are subordinated to senior subordinated debt); and
(c) creditors of the Company who are not holders of senior subordinated or
subordinated Debt Securities may recover less, ratably, than holders of Senior
Debt and may recover more, ratably, than the holders of the senior subordinated
or subordinated Debt Securities, and creditors of the Company who are not
holders of subordinated Debt Securities may recover less, ratably, than holders
of Senior Debt and may recover more, ratably, than holders of subordinated Debt
Securities. Accordingly, such subordination may result in
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a reduction or elimination of payments to the holders of all senior subordinated
and subordinated Debt Securities or all subordinated Debt Securities.
Except as may otherwise be described in the accompanying Prospectus
Supplement, no payment of principal or interest with respect to any of the
Offered Debt Securities that are senior subordinated or subordinated Debt
Securities may be made, nor may the Company acquire any Offered Debt Securities
that are senior subordinated or subordinated Debt Securities, in each case
except as set forth in the Indenture for such Offered Debt Securities, if any
default with respect to Senior Debt that permits the acceleration of the
maturity of any Senior Debt occurs and is continuing and such default is either
the subject of judicial proceedings or the Company receives notice (a "Default
Notice") of the default from a holder of Senior Debt entitled to give such a
notice. By reason of these provisions, in the event of a default on any Senior
Debt of the Company that is presently existing or may be incurred in the future,
payments of principal of and interest and premium, if any, on the Offered Debt
Securities that are senior subordinated or subordinated Debt Securities may not
be permitted until such Senior Debt is paid in full. However, except as may
otherwise be described in the accompanying Prospectus Supplement, the Company
may resume payments in respect of the Offered Debt Securities that are senior
subordinated or subordinated Debt Securities and may acquire such senior
subordinated or subordinated Debt Securities if (a) 179 days pass after the
Default Notice is given, if the default with respect to such Senior Debt is not
then the subject of judicial proceedings, or (b) the default with respect to
such Senior Debt is cured or waived and, in each case described in the foregoing
clauses (a) and (b), the terms of the Indenture otherwise permit the payment or
acquisition of such Offered Debt Securities at the time in question. The
Indenture for the Company's $100 million of 10 7/8% Senior Notes and the
Company's principal credit facility restrict the acquisition by the Company of
its subordinated indebtedness, including any senior subordinated or subordinated
Debt Securities, prior to April 1, 2000 (for the Indenture for the Senior Notes)
and the term of the principal credit facility as it may be extended from time to
time, respectively, and the Indentures for the Company's $100 million of 9 3/4%
Senior Subordinated Debentures and $100 million of 9% Senior Subordinated
Debentures restrict the acquisition, prior to March 1, 2003 and February 15,
2006, respectively, of subordinated Debt Securities issued pursuant to the
Subordinated Debt Indenture. The Prospectus Supplement or the information
incorporated herein by reference sets forth the approximate amount of Senior
Debt and Senior Subordinated Debt outstanding as of the end of the most recent
fiscal quarter of the Company.
CERTAIN COVENANTS OF THE COMPANY
AFFIRMATIVE COVENANTS. In addition to such other covenants, if any, as may
be described in the accompanying Prospectus Supplement and except as may
otherwise be set forth therein, the Indenture for the Offered Debt Securities
will require the Company, subject to certain limitations described therein, to,
among other things, do the following: (a) deliver to the Trustee copies of all
reports filed with the Commission; (b) deliver to the Trustee annual officers'
certificates with respect to the Company's compliance with its obligations under
that Indenture; (c) maintain its corporate existence subject to the provisions
described below relating to mergers and consolidations; and (d) pay its taxes
when due except where such taxes are being contested in good faith. Except as
may be set forth in the accompanying Prospectus Supplement, the Indentures will
not restrict the business or operations of the Company or its subsidiaries,
limit their indebtedness or prohibit any liens, charges or other encumbrances on
any properties or other assets they may have from time to time.
DIVIDENDS AND OTHER PAYMENTS. Except as may otherwise be provided in the
accompanying Prospectus Supplement and except as may otherwise be set forth in,
the Indenture for the Offered Debt Securities, that Indenture will generally
prohibit the Company from making a "Restricted Payment" (defined below) if, at
the time of the Restricted Payment, (a) an Event of Default (as defined) has
occurred under the Indenture and is continuing or would occur as a consequence
of
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the Restricted Payment or (b) if, upon giving effect to the Restricted Payment,
the aggregate amount expended for all Restricted Payments exceeds the sum of (i)
a specified percentage of the aggregate consolidated net earnings of the Company
accrued during certain fiscal quarters, (ii) the aggregate net proceeds received
by the Company from the issuance or sale of capital stock of the Company, (iii)
the amount expended by the Company for the purchase, redemption or other
acquisition or retirement for value of any preferred stock of the Company plus
(iv) the amount set forth in the accompanying Prospectus Supplement. Except as
may be otherwise provided in the accompanying Prospectus Supplement, a
"Restricted Payment" will be defined as any of the following: (1) declaring or
paying any dividend on, or making any distribution to the holders of, any shares
of the Company's capital stock, other than dividends or distributions payable in
"Equity Interests" (defined as equity securities or securities with a right to
acquire equity securities (other than convertible debt securities) of the
Company) or (2) purchasing, redeeming or otherwise acquiring or retiring for
value any Equity Interests.
CHANGE OF CONTROL. Except as may otherwise be set forth in the accompanying
Prospectus Supplement, the Indenture for the Offered Debt Securities will
provide that, if a Change of Control occurs, the Company will be obligated to
offer to purchase all outstanding Offered Debt Securities at a purchase price
equal to 100 percent of the aggregate principal amount of the Debt Securities,
plus accrued and unpaid interest to the date of purchase. Any offer to purchase
Offered Debt Securities upon a Change of Control will be conducted in compliance
with applicable regulations under the federal securities laws, including
Exchange Act Rule 14e-1. Any limitations on the Company's financial ability to
purchase Offered Debt Securities upon a Change of Control will be described in
the accompanying Prospectus Supplement. Except as may be otherwise provided in
the accompanying Prospectus Supplement, a "Change of Control" will be defined in
the Indenture as any of the following: (a) all or substantially all of the
Company's assets are sold as an entirety to any person or it engages in any
merger, consolidation, sale of capital stock, sale of beneficial ownership
interests or any other transactions as a result of which its shareholders
immediately prior to such transactions own, directly or indirectly, in the
aggregate less than 50 percent of the total voting power entitled to vote in the
election of (i) its directors, if it is the surviving entity, or (ii) the
directors, managers or trustees of (1) the surviving entity or (2) the purchaser
of all or substantially all of its assets; or (b) any person acquires more than
50 percent of the total voting power entitled to vote for directors of the
Company. Except as may otherwise be set forth in the accompanying Prospectus
Supplement, the Company's failure to comply with the Change of Control covenant
as to the Offered Debt Securities will be an Event of Default under the
Indenture for the Offered Debt Securities, as specified in the accompanying
Prospectus Supplement. See "Events of Default" below. The meaning of the term
"all or substantially all of the assets" has not been definitely established and
is likely to be interpreted by reference to applicable state law if and at the
time the issue arises and will be dependent on the facts and circumstances
existing at the time. Accordingly, there may be uncertainty as to whether a
holder of Offered Debt Securities can determine whether a Change of Control has
occurred and exercise any remedies such holder may have upon a Change of
Control. Except as described above with respect to a Change of Control or as
described in the accompanying Prospectus Supplement, the Indenture for the
Offered Debt Securities will not afford holders of the Debt Securities
protection in the event of a highly leveraged transaction, takeover,
reorganization, restructuring, recapitalization, merger or similar transaction
involving the Company that may adversely affect holders of the Debt Securities.
MERGER, CONSOLIDATION, SALE, LEASE OR CONVEYANCE. Except as may otherwise
be provided in the accompanying Prospectus Supplement, the Indenture for the
Offered Debt Securities will provide that the Company will not merge or
consolidate with or into any other person and will not sell, lease or convey all
or substantially all of its assets to any person, unless it is the continuing
corporation, or the successor corporation or person that acquires all or
substantially all of its assets is a corporation organized and existing under
the laws of the United States or a State thereof or the District of Columbia and
expressly assumes all of the Company's obligations under the Offered Debt
Securities and the Indenture for the Offered Debt Securities and, immediately
after such merger,
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consolidation, sale, lease or conveyance, such person or such successor
corporation is not in default in the performance of the covenants and conditions
in the Indenture for the Offered Debt Securities. With respect to possible
uncertainties concerning the meaning of the term "all or substantially all of
the assets", the possible lack of protection in a highly leveraged merger or
other transaction and related possible effects on holders of the Debt
Securities, see "Change of Control" above.
REDEMPTION
If and to the extent set forth in the accompanying Prospectus Supplement,
the Company will have the right to redeem the Offered Debt Securities, in whole
or from time to time in part, after the date and at the redemption prices set
forth in the accompanying Prospectus Supplement.
EVENTS OF DEFAULT
Except as may be described in the accompanying Prospectus Supplement, an
"Event of Default" will be defined under the Indenture for the Offered Debt
Securities as being: (a) default for 30 days in payment of any interest on the
Offered Debt Securities; (b) default in payment of any principal of the Offered
Debt Securities, either at maturity (or upon any redemption), by declaration or
otherwise; (c) default for 60 days after written notice in the performance of
any other agreements or covenants in, or provisions of, the Offered Debt
Securities or the Indenture for the Offered Debt Securities; (d) an event of
default under any mortgage, indenture or instrument under which there may be
issued or by which there may be secured or evidenced any Indebtedness for money
borrowed by the Company and certain of its subsidiaries (or the payment of which
is guaranteed by the Company), other than non-recourse Indebtedness, if (i)
either (1) such event of default results from the failure to pay any such
Indebtedness at maturity and such default has not been cured or such
acceleration rescinded or (2) as a result of such event of default, the maturity
of such Indebtedness has been accelerated prior to its expressed maturity and
(ii) the principal amount of such Indebtedness, together with the principal
amount of any other such Indebtedness in default for failure to pay principal at
maturity or the maturity of which has been so accelerated and the acceleration
of which has not been rescinded, equals or exceeds the amount specified in the
accompanying Prospectus Supplement; (e) failure for 60 days to discharge final
judgments against the Company and certain of its subsidiaries for the payment of
money aggregating the amount specified in the accompanying Prospectus Supplement
or more; and (f) certain events of bankruptcy, insolvency or reorganization.
The Indenture for the Offered Debt Securities will provide that if an Event
of Default (other than an Event of Default due to certain events of bankruptcy,
insolvency or reorganization) has occurred and is continuing, either the Trustee
or the holders of not less than 25 percent in principal amount of the Offered
Debt Securities outstanding under the Indenture for the Offered Debt Securities,
or such other amount as may be specified in the Prospectus Supplement, may then
declare the principal of all Offered Debt Securities under that Indenture and
interest accrued thereon to be due and payable immediately.
Except to the extent otherwise stated in the accompanying Prospectus
Supplement, the Indenture for the Offered Debt Securities will contain a
provision entitling the Trustee, subject to the duty of the Trustee during a
default to act with the required standard of care, to be indemnified by the
holders of Offered Debt Securities before proceeding to exercise any right or
power under that Indenture at the request of such holders. Subject to such
provisions in the Indenture for the Offered Debt Securities for the
indemnification of the Trustee and certain other limitations, the holders of a
majority in principal amount of the Offered Debt Securities then outstanding may
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee.
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Except to the extent otherwise stated in the accompanying Prospectus
Supplement, the Indenture for the Offered Debt Securities will provide that no
holder of Offered Debt Securities may institute any action against the Company
under the Indenture (except actions for payment of overdue principal or
interest) unless (a) such holder previously has given the Trustee written notice
of the default and continuance thereof, (b) the holders of not less than 25
percent in principal amount of the Offered Debt Securities then outstanding have
requested the Trustee to institute such action and offered the Trustee
reasonable indemnity, (c) the Trustee has not instituted such action within 60
days of the request and (d) the Trustee has not received direction inconsistent
with such written request from the holders of a majority in principal amount of
the Offered Debt Securities then outstanding under the Indenture.
The Indentures and the Debt Securities will provide that no director,
officer, employee or shareholder of the Company, as such, will have any
liability for any obligations of the Company under the Debt Securities or the
Indentures. The Indentures and the Debt Securities will also each provide that
each holder of the Debt Securities, by accepting the Debt securities, waives and
releases all such liability.
DEFEASANCE AND DISCHARGE
Except as may otherwise be provided in the accompanying Prospectus
Supplement, the Company can discharge or defease its obligations under the
Indenture for the Offered Debt Securities as set forth below.
Under terms satisfactory to the Trustee, the Company may discharge certain
obligations to holders of the Offered Debt Securities that have not already been
delivered to the Trustee for cancellation and that have either become due and
payable or are by their terms due and payable within one year (or scheduled for
redemption within one year) by irrevocably depositing with the Trustee cash or
United States Government Obligations (as defined in the Indenture for the
Offered Debt Securities), or a combination thereof, as trust funds in an amount
certified to be sufficient to pay at maturity (or upon redemption) the principal
of and interest on such Offered Debt Securities.
The Company may also discharge any and all of its obligations to holders of
the Offered Debt Securities at any time ("defeasance"), but may not thereby
avoid its duty to register the transfer or exchange of the Offered Debt
Securities, to replace any temporary, mutilated, destroyed, lost or stolen
Offered Debt Securities or to maintain an office or agency in respect of such
Offered Debt Securities and certain other obligations. Alternatively, the
Company may be released with respect to the Offered Debt Securities from the
obligations imposed by specific portions of the Indenture for the Offered Debt
Securities (including the covenant described above limiting consolidations,
mergers, asset sales and leases) and omit to comply with such provisions without
creating an Event of Default ("covenant defeasance"). Defeasance or covenant
defeasance may be effected only if, among other things: (a) the Company
irrevocably deposits with the Trustee cash or United States Government
Obligations, or a combination thereof, as trust funds in an amount certified to
be sufficient to pay at maturity the principal of and interest on all
outstanding Offered Debt Securities; (b) no Event of Default under the Indenture
for the Offered Debt Securities has occurred and is then continuing; (c) the
defeasance or covenant defeasance will not result in an event of default under
any agreement to which the Company is a party or by which it is bound; and (d)
the Company delivers to the Trustee an opinion of counsel to the effect that the
holders of Debt Securities will not recognize income, gain or loss for federal
income tax purposes as a result of such defeasance or covenant defeasance and
that such defeasance or covenant defeasance will not otherwise alter such
holders' federal income tax treatment of principal and interest payments on the
Offered Debt Securities.
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MODIFICATIONS TO THE INDENTURES
Except as may otherwise be set forth in the accompanying Prospectus
Supplement, the Indenture for the Offered Debt Securities will provide that the
Company and the Trustee may enter into supplemental indentures without the
consent of the holders of Offered Debt Securities to, among other things: (a)
add covenants, conditions and restrictions for the protection of the holders of
Offered Debt Securities or to surrender any right of the Company; (b) cure any
ambiguity or correct any inconsistency in the Indenture for the Offered Debt
Securities; (c) make any change that does not adversely affect the legal rights
of holders of Offered Debt Securities; (d) modify, eliminate or add to the
provisions of the Indenture for the Offered Debt Securities to the extent
necessary to qualify that Indenture under applicable federal statutes; or (e)
make any other changes in the Indenture before Offered Debt Securities are
issued thereunder, provided that such changes are not prohibited by the Trust
Indenture Act.
Except as may otherwise be set forth in the accompanying Prospectus
Supplement, the Indenture for the Offered Debt Securities also will contain
provisions permitting the Company and the Trustee, with the consent of the
holders of not less than a majority in principal amount of Offered Debt
Securities outstanding, to add any provision to, change in any manner or
eliminate any of the provisions of the Indenture for the Offered Debt Securities
or modify in any manner the rights of the holders of the Offered Debt Securities
so affected; provided that the Company and the Trustee may not, without the
consent of the holder of each outstanding Offered Debt Security affected
thereby, do, among other things, any of the following: (a) reduce the amount of
Offered Debt Securities whose holders must consent to an amendment, supplement
or waiver with respect to the Indenture; (b) reduce the rate of or change the
time for payment of interest on any Offered Debt Security; (c) reduce the
principal of or change the fixed maturity of any Offered Debt Security; or (d)
waive a default in the payment of the principal of, or interest on, any Offered
Debt Security.
The Indentures for senior subordinated or subordinated Offered Debt
Securities may not be amended to alter the subordination of any outstanding
senior subordinated or subordinated Debt Securities without the consent of each
holder of Senior Debt and, as to subordinated Debt Securities, also senior
subordinated debt then outstanding that would be adversely affected thereby.
CONCERNING THE TRUSTEE
An affiliate of The First National Bank of Boston is a lender to the
Company under the Company's principal credit facility, and it or any other
Trustee, or their respective affiliates, may from time to time have lender or
other business arrangements with the Company. The Indenture will contain certain
limitations on the rights of the Trustee, should it or its affiliates then be
creditors of the Company, to obtain payment of claims in certain cases or to
realize on certain property received in respect of any such claim as security or
otherwise. The Trustee and its affiliates will be permitted to engage in other
transactions; however, if they acquire any conflicting interest, the conflict
must be eliminated or the Trustee must resign.
The Holders of a majority in principal amount of the then outstanding Debt
Securities issued under any Indenture will have the right to direct the time,
method and place of conducting any proceeding for exercising any remedy
available to the Trustee under that Indenture, subject to certain exceptions.
Unless otherwise stated in the applicable Prospectus Supplement, the Indentures
will provide that in case an Event of Default occurs and is not cured, the
Trustee will be required, in the exercise of its power, to use the degree of
care of a prudent person in similar circumstances in the conduct of his, her or
its affairs. Subject to such provisions, the Trustee will be under no obligation
to exercise any of its rights or powers under any Indenture at the request of
any Holder, unless such Holder has offered the Trustee security and indemnity
satisfactory to the Trustee.
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GOVERNING LAW
Unless otherwise specified in the accompanying Prospectus Supplement, the
Indenture for the Offered Debt Securities and the Offered Debt Securities will
be governed by New York law.
DESCRIPTION OF WARRANTS
GENERAL
The Warrants will be issued in fully registered form under a Warrant
Agreement between the Company and the Warrant Agent named in the accompanying
Prospectus Supplement (the "Warrant Agent"). The statements in this Prospectus
relating to the Warrants and the Warrant Agreement are summaries and do not
purport to be complete.
Each Warrant will entitle the registered owner (the "Warrantholder") to
purchase one share of Preferred or Common Stock, as set forth in the
accompanying Prospectus Supplement, subject to the call provisions referred to
below, from the time the Warrants are separately transferable until the date set
forth in the accompanying Prospectus Supplement. The initial per share exercise
price of the Warrants and the date on which the Warrants become separately
transferable will be set forth in the applicable Prospectus Supplement.
The Warrants can be exercised by surrendering to the Warrant Agent a
Warrant certificate signed by the Warrantholder or his, her or its duly
authorized agent indicating the Warrantholder's election to exercise all or a
portion of the Warrants evidenced by the certificate. Surrendered Warrant
certificates must be accomplished by payment of the aggregate exercise price of
the Warrants to be exercised (the "Warrant Price"), which payment may be made in
the form of cash or a cashier's check equal to the exercise price or, if and to
the extent set forth in the accompanying Prospectus Supplement, the surrender of
Debt Securities in denominations at least equal to the aggregate Warrant Prices
or, if applicable, any combination of cash and such denominations of Debt
Securities. If the principal amount of Debt Securities surrendered is in excess
of the aggregate Warrant Price so paid, only a portion of such surrendered
principal amount shall be accepted against payment of the Warrant Price and new
Debt Securities shall be issued in the principal amount not so applied against
the aggregate Warrant Price, provided that the amount of such excess is $1,000
or an integral multiple thereof.
Certificates evidencing duly exercised Warrants shall be delivered by the
Warrant Agent to the transfer agent for the Preferred or Common Stock, as
applicable. Upon receipt thereof, the transfer agent will be obligated to
deliver or cause to be delivered, to or upon the written order of the exercising
Warrantholders, certificates representing the number of shares of Preferred or
Common Stock so purchased. If fewer than all of the Warrants evidenced by any
certificate are exercised, the Warrant Agent will be obligated to deliver to the
exercising Warrantholder a new Warrant certificate representing the unexercised
Warrants.
To the extent set forth in the accompanying Prospectus Supplement, the
Warrant Price and the number of shares of Preferred or Common Stock purchasable
upon the exercise of each Warrant are subject to adjustment in certain events,
including: (i) the issuance of a stock dividend to holders of Preferred Stock or
Common Stock (whichever the Warrants are exercisable for) or a combination,
subdivision, or reclassification of the Preferred Stock or the Common Stock
(whichever the Warrants are exercisable for); (ii) the issuance of rights,
warrants or options or securities convertible into, or exchangeable for, the
Preferred Stock or the Common Stock (whichever the Warrants are exercisable
for), that are distributed to all holders of the Company's outstanding Preferred
or Common Stock (whichever the Warrants are exercisable for) entitling them to
subscribe for or purchase Preferred or Common Stock; and (iii) any distribution
by the Company to the holders of its Preferred or Common Stock (whichever the
Warrants are exercisable for) of evidences of indebtedness of the Company or of
assets (excluding, if and to the extent set
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forth in the accompanying Prospectus Supplement, certain cash dividends or
distributions). To the extent set forth in the accompanying Prospectus
Supplement, no adjustment in the number of shares purchasable upon exercise of
the Warrants or in the Warrant Price will be required until cumulative
adjustments require an adjustment of at least one percent thereof. In addition,
unless the accompanying Prospectus Supplement states to the contrary, the
Company may, at its option, reduce the Warrant Price at any time. No fractional
shares will be issued upon exercise of Warrants, but the Company will pay the
cash value of any fractional shares otherwise issuable.
Notwithstanding the foregoing, unless the accompanying Prospectus
Supplement states to the contrary, in case of any consolidation, merger or sale
or conveyance of the property of the Company and its subsidiaries as a whole,
including a consolidation or merger in which the Company is the continuing
corporation and in which all or a majority of the Preferred and Common Stock
outstanding immediately prior to the consolidation or merger is converted into
consideration other than capital stock (or the right to receive such
consideration), the holder of each outstanding Warrant shall have the right to
exercise the Warrant for the kind and amount of shares of stock and other
securities and property (including cash) receivable by a holder of the number of
shares of Preferred and Common Stock for which such Warrant was exercisable
immediately prior thereto.
Adjustments to the Warrant Price (and, possibly, adjustment to the number
of shares of Preferred or Common Stock purchasable upon the exercise of each
Warrant), or the failure to make such adjustments, may in certain circumstances
result in distributions that could be taxable as dividends under the Internal
Revenue Code of 1986, as amended, to holders of the Warrants or to holders of
shares of Preferred or Common Stock issued upon exercise thereof. The Company
will reserve the right (but will not be obligated) to make such adjustments to
the Warrant Price or in the number of shares of Preferred or Common Stock
purchasable upon the exercise of each Warrant, in addition to those required in
the foregoing provisions, as it shall determine to be advisable in order that
certain stock-related distributions which may hereafter be made by the Company
to its stockholders after the date of the accompanying Prospectus Supplement
shall not be taxable to them.
If all or any portion of the Warrants are callable at the option of the
Company, the call provisions, including the call price and the date through
which the Warrants may be exercised, will be set forth in the accompanying
Prospectus Supplement. If upon expiration the unexercised Warrants will convert
into Preferred or Common Stock, the manner and rate of such conversion will be
set forth in the accompanying Prospectus Supplement.
Holders of Warrants are not entitled, by virtue of being holders, to
receive dividends or to consent or to receive notice as stockholders in respect
of any meeting of stockholders for the election of directors of the Company or
any other matter, to vote at any such meeting or to exercise any rights
whatsoever as stockholders of the Company. The Warrant Agreement and the
Warrants will provide that no director, officer, employee or shareholder of the
Company, as such, will have any liability under the Warrants or the Warrant
Agreement. The Warrant Agreement and the Warrants will also each provide that
each holder of the Warrants, by accepting the Warrants, waives and releases all
such liability.
Unless otherwise specified in the accompanying Prospectus Supplement, the
Warrant Agreement and the Warrants will be governed by New York law.
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DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of the Company consists of 30,000,000 shares
of Common Stock, $.001 par value, and 10,000,000 shares of Preferred Stock,
$.001 par value, of which 14,875,843 shares of Common Stock (exclusive of
treasury shares) were issued and outstanding on April 30, 1995. No shares of
Preferred Stock were outstanding at that date.
COMMON STOCK
Subject to the rights of holders of any outstanding Preferred Stock, the
holders of outstanding shares of Common Stock are entitled to share ratably in
dividends declared out of assets legally available therefor at such time and in
such amounts as the Board of Directors may from time to time lawfully determine.
At the date of this Prospectus the payment of dividends on the Common Stock is
limited by provisions of the Company's $100 million of 10 7/8% Senior Notes due
April 1, 2000, its $100 million of 9 3/4% Senior Subordinated Debentures due
March 1, 2003, its $100 million of 9% Senior Subordinated Debentures due
February 15, 2006 and its principal credit facility.
Each holder of Common Stock is entitled to one vote for each share held by
him. Holders of Common Stock are not entitled to cumulate votes for the election
of directors. The Common Stock is not entitled to conversion or preemptive
rights and is not subject to redemption or assessment. Subject to the rights of
holders of any outstanding Preferred Stock, upon liquidation, dissolution or
winding up of the Company, any assets legally available for distribution to
shareholders as such are to be distributed ratably among the holders of the
Common Stock at that time outstanding. The Common Stock presently outstanding
is, and the Common Stock issued upon conversion of the Debt Securities, exercise
of the Warrants (upon payment in full of the Warrant exercise price) or
conversion of any convertible Preferred Stock offered hereby, as the case may
be, will be, fully paid and nonassessable.
PREFERRED STOCK
The authorized shares of Preferred Stock are issuable, without further
shareholder approval, in one or more series as determined by the Board of
Directors, with such rights, privileges and preference as are fixed by the Board
of Directors, including dividend, liquidation and other rights preferred over
the Common Stock, subject to the restrictions in the Indentures and credit
facility referred to above. The Preferred Stock issuable upon exercise of any
Warrants exercisable for Preferred Stock (upon payment in full of the Warrant
exercise price) or conversion of any Debt Securities convertible into Preferred
Stock will be fully paid and nonassessable. The Preferred Stock may be
convertible and, if so convertible, may be converted into one or both of Common
Stock and Debt Securities. The Preferred Stock may also be exchangeable, at the
option of the Company, for Debt Securities (see "Description of Debt
Securities"). If Preferred Stock or Warrants exercisable for Preferred Stock are
being offered or if the Preferred Stock is exchangeable for Debt Securities, the
accompanying Prospectus Supplement will describe the rights, privileges,
preferences and restrictions of such Preferred Stock (including, without
limitation, the designation, the number of authorized shares of the series in
question, the dividend rate (or method of calculation), any voting rights,
conversion rights, anti-dilution protections, exchangeability provisions and
terms of the Debt Securities that are exchangeable for the Preferred Stock, any
redemption provisions, liquidation preferences and any sinking fund provisions).
If fractional interests in shares of Preferred Stock may be issued, there will
be a depositary for the shares of Preferred Stock involved and the applicable
Prospectus Supplement will describe the terms of the depositary arrangement and
related matters.
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PLAN OF DISTRIBUTION
The Company may sell the Securities to one or more underwriters for public
offering and sale by them or may sell the Securities to investors directly or
through agents. Any such underwriter or agent involved in the offer and sale of
the Securities will be named in the applicable Prospectus Supplement. The
Company may sell Securities directly to investors on its own behalf in those
jurisdictions where it is authorized to do so.
Underwriters may offer and sell the Securities at a fixed price or prices,
which may be changed, at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices. The Company
also may, from time to time, authorize dealers, acting as Company agents, to
offer and sell the Securities upon such terms and conditions as may be set forth
in the Prospectus Supplement. In connection with the sale of the Securities,
underwriters may receive compensation from the Company in the form of
underwriting discounts or commissions and may also receive commissions from
purchasers of the Securities for whom they may act as agent. Underwriters may
sell the Securities to or through dealers, and such dealers may receive
compensation in the form of discounts, concessions or commissions from the
underwriters or commissions from the purchasers for which they may act as
agents.
Any underwriting compensation paid by the Company to underwriters or agents
in connection with the offering of the Securities, and any discounts or
concessions or commissions allowed by underwriters to participating dealers,
will be set forth in the applicable Prospectus Supplement. Dealers and agents
participating in the distribution of the Securities may be deemed to be
underwriters, and any discounts and commissions received by them and any profit
realized by them on resale of the Securities may be deemed to be underwriting
discounts and commissions. Underwriters, dealers and agents may be entitled,
under agreements entered into with the Company, to indemnification against and
contribution toward certain civil liabilities.
The Debt Securities, the Preferred Stock and the Warrants will be new
issues of securities with no established trading market. Any underwriters or
agents to or through which Securities are sold by the Company for public
offering and sale may make a market in such Securities, but such underwriters or
agents will not be obligated to do so and any of them may discontinue any market
making at any time without notice. No assurance can be given as to the liquidity
of or trading market for any Debt Securities, Preferred Stock or Warrants.
CERTAIN LEGAL MATTERS
Gibson, Dunn & Crutcher has rendered an opinion (filed as an exhibit to the
Registration Statement) with respect to the validity of the Debt Securities,
Preferred Stock, Common Stock and Warrants covered by this Prospectus. The
partner of Gibson, Dunn & Crutcher who has primary responsibility for the work
of that firm in connection with this Registration Statement beneficially owns
$225,000 in principal amount of the 10 7/8% Senior Notes due 2000 of the
Company. Certain legal matters in connection with offerings made by this
Prospectus may be passed on for any underwriters by counsel named in the
Prospectus Supplement.
EXPERTS
The consolidated financial statements and schedules of Del Webb Corporation
and subsidiaries as of June 30, 1994 and 1993, and for each of the years in the
three-year period ended June 30, 1994, have been incorporated by reference
herein and in the Registration Statement in reliance upon the report of KPMG
Peat Marwick LLP, independent certified public accountants, incorporated by
reference herein, and upon authority of said firm as experts in accounting and
auditing. The report of KPMG Peat Marwick LLP covering the June 30, 1993
consolidated financial statements refers to a change in the method of accounting
for income taxes.
15
<PAGE> 18
=========================================================================
NO DEALER, SALESMAN OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS IN CONNECTION WITH THE OFFER MADE BY THIS PROSPECTUS AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY OR ANY UNDERWRITER. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE ANY
IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE
THE DATE HEREOF. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER OR SOLICITATION BY
ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED
OR IN AND WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO
DO SO OR TO ANYONE TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information................. 2
Incorporation of Certain Documents by
Reference........................... 2
The Company........................... 3
Use of Proceeds....................... 3
Consolidated Ratio of Earnings to
Fixed Charges....................... 3
Description of Debt Securities........ 4
Description of Warrants............... 12
Description of Capital Stock.......... 14
Plan of Distribution.................. 15
Certain Legal Matters................. 15
Experts............................... 15
</TABLE>
=========================================================================
DEL WEBB
CORPORATION
------------------------
Debt Securities, Preferred
Stock, Common Stock
Stock Purchase Warrants
------------------------
PROSPECTUS
------------------------
, 199
=========================================================================
<PAGE> 19
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION*
The following are the estimated expenses of the issuance and distribution
of the securities being registered, all of which will be paid by the Registrant.
<TABLE>
<S> <C>
Registration fee................................................. $ 68,966
Blue Sky fees and expenses....................................... 15,000
Exchange listing fees............................................ 24,650
Printing expenses................................................ 50,000
Legal fees and expenses.......................................... 100,000
Accounting fees and expenses..................................... 40,000
Trustee's fees and expenses (including counsel fees)............. 7,000
Miscellaneous.................................................... 9,384
--------
Total.................................................. $315,000
========
</TABLE>
- ---------------
*All amounts are estimated except Commission's registration fee.
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS
Section 145 of the Delaware General Corporation Law and Sections 5.4 and
7.1-7.4 of the Company's Amended and Restated Certificate of Incorporation each
provide for indemnification by the Company of its officers, directors, agents
and employees under certain circumstances. In addition, the Company has entered
into indemnification agreements with each of its directors and executive
officers (see Exhibit 10).
It is anticipated that in any Underwriting Agreements, the underwriter(s)
named therein will agree to indemnify the Company, its directors and certain of
its officers against certain civil liabilities, including civil liabilities
under the Securities Act of 1933, as amended (the "Securities Act").
The Registrant has a policy of directors' and officers' liability insurance
which insures directors and officers against the cost of defense, settlement or
payment of a judgment under certain circumstances.
ITEM 16. EXHIBITS
<TABLE>
<S> <C>
4.1 -- Form of Senior Debt Indenture (including form of Senior Debenture/Note/Global
Security)*
4.2 -- Form of Senior Subordinated Debt Indenture (including form of Senior Subordinated
Debenture/Note/Global Security)*
4.3 -- Form of Subordinated Debt Indenture (including form of Subordinated Debenture/
Note/Global Security)*
4.4 -- Form of Warrant Agreement (including form of Warrant)*
4.5 -- Form of Certificate of Designations of Del Webb Corporation Pursuant to Section
151 of the Delaware General Corporation Law (the form of Certificate of
Designations for the Preferred Stock)*
4.6 -- Form of Depositary Agreement (including form of Depositary Receipt)*
5 -- Opinion of Gibson, Dunn & Crutcher as to the legality of the securities to be
issued*
</TABLE>
II-1
<PAGE> 20
<TABLE>
<S> <C>
10 -- Form of Directors and Officers Indemnification Agreement (incorporated by
reference to Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1995)*
12 -- Computation of Ratio of Earnings to Fixed Charges*
23.1 -- Consent of KPMG Peat Marwick LLP*
23.2 -- Consent of Gibson, Dunn & Crutcher (included as part of Exhibit 5)*
24 -- Powers of Attorney (included at pages II-3 and II-4)*
25 -- Statement of Eligibility of Trustee (bound separately)*
</TABLE>
- ---------------
* Previously filed.
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement to include any material
information with respect to the plan of distribution not previously disclosed in
the Registration Statement or any material change to such information in the
Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act, 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 post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Securities
Act, each filing of the registrant's annual report pursuant to section 13(a) or
section 15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the Exchange
Act) that is incorporated by reference in the Registration Statement shall be
deemed to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(5) That, for purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rules 424(b)(l) or 497(h) under
the Securities Act shall be deemed to be part of this Registration Statement as
of the time it was declared effective.
(6) That, for the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall be
deemed to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(7) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described in Item 15 (other than the
provisions relating to insurance), or otherwise, the registrant has been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in
II-2
<PAGE> 21
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 and will be governed by the final adjudication of such issue.
(8) The undersigned Registrant hereby undertakes to file an application, if
necessary, for the purpose of determining the eligibility of any trustee to act
under subsection (a) of Section 310 of the Trust Indenture Act in accordance
with the rules and regulations prescribed by the Commission under Section
305(b)(2) of the Act.
II-3
<PAGE> 22
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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 Phoenix, Arizona on July 20, 1995.
DEL WEBB CORPORATION
By: /s/ ROBERTSON C. JONES
------------------------------------
Robertson C. Jones
Vice President and General Counsel
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
* Chairman of the Board July 20, 1995
- --------------------------------------------- and Chief Executive Officer
Philip J. Dion (Principal Executive Officer)
* Senior Vice President, July 20, 1995
- --------------------------------------------- Finance and Administration,
John A. Spencer and Chief Financial Officer
(Principal Financial Officer)
* Vice President and Controller July 20, 1995
- --------------------------------------------- (Principal Accounting Officer)
David E. Rau
* Director July 20, 1995
- ---------------------------------------------
D. Kent Anderson
* Director July 20, 1995
- ---------------------------------------------
Robert Bennett
* Director July 20, 1995
- ---------------------------------------------
Hugh F. Culverhouse, Jr.
* Director July 20, 1995
- ---------------------------------------------
Kenny C. Guinn
* Director July 20, 1995
- ---------------------------------------------
J. Russell Nelson
* Director July 20, 1995
- ---------------------------------------------
Peter A. Nelson
</TABLE>
II-4
<PAGE> 23
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
* Director July 20, 1995
- ---------------------------------------------
Michael E. Rossi
* Director July 20, 1995
- ---------------------------------------------
C. Anthony Wainwright
* Director July 20, 1995
- ---------------------------------------------
Sam Yellen
*By: /s/ ROBERTSON C. JONES
- ---------------------------------------------
Robertson C. Jones
Attorney-in-Fact
</TABLE>
II-5
<PAGE> 24
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- -----------
<S> <C>
4.1 -- Form of Senior Debt Indenture (including form of Senior Debenture/Note/
Global Security)*
4.2 -- Schedule of material details in which the form of Senior Subordinated
Debt Indenture (including the form of Senior Subordinated
Debenture/Note/ Global Security) differs from the form of Senior Debt
Indenture (including the form of Senior Debenture/Note/Global Security);
and the form of Senior Subordinated Debt Indenture (including form of
Senior Subordinated Debenture/Note/Global Security)*
4.3 -- Schedule as to material details in which the form of Subordinated Debt
Indenture (including the form of Subordinated Debenture/Note/Global
Security) differs from the form of Senior Subordinated Debt Indenture
(including form of Senior Subordinated Debenture/Note/Global Security);
and the form of Subordinated Debt Indenture (including form of
Subordinated Debenture/Note/Global Security)*
4.4 -- Form of Warrant Agreement (including form of Warrant)*
4.5 -- Form of Certificate of Designations of Del Webb Corporation Pursuant to
Section 151 of the Delaware General Corporation Law (the form of
Certificate of Designations for the Preferred Stock)*
4.6 -- Form of Depositary Agreement (including form of Depositary Receipt)*
5 -- Opinion of Gibson, Dunn & Crutcher as to the legality of the Securities
to be issued*
10 -- Form of Directors and Officers Indemnification Agreement (incorporated
by reference to Registrant's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1995)*
12 -- Computation of Ratio of Earnings to Fixed Charges*
23.1 -- Consent of KPMG Peat Marwick LLP*
23.2 -- Consent of Gibson, Dunn & Crutcher (included in Exhibit 5)*
24 -- Power of Attorney*
25 -- Statement of Eligibility of Trustee*
</TABLE>
- ---------------
* Previously filed.
