PROSPECTUS
- ---------- $500,000,000
MERRY LAND & INVESTMENT COMPANY, INC.
DEBT SECURITIES, PREFERRED STOCK, DEPOSITARY SHARES,
COMMON STOCK AND COMMON STOCK WARRANTS
------------
Merry Land & Investment Company, Inc. ("Merry Land" or the
"Company") may from time to time offer in one or more series (i)
its unsecured senior or subordinated debt securities (the "Debt
Securities"), (ii) shares or fractional shares of its preferred
stock, without par value (the "Preferred Stock"), (iii) shares of
Preferred Stock represented by depositary shares (the "Depositary
Shares"), (iv) shares of its common stock, without par value (the
"Common Stock"), or (v) warrants to purchase Common Stock (the
"Common Stock Warrants"), with an aggregate public offering price
of up to $500,000,000 on terms to be determined at the time of
offering. The Debt Securities, Preferred Stock, Depositary
Shares, Common Stock and Common Stock Warrants (collectively, the
"Offered Securities") may be offered, separately or together, in
separate series in amounts, at prices and on terms to be set
forth in a supplement to this Prospectus (each, a "Prospectus
Supplement").
The Debt Securities will be direct unsecured obligations of
the Company and may be either senior Debt Securities ("Senior
Debt Securities") or subordinated Debt Securities ("Subordinated
Debt Securities"). The Senior Debt Securities will rank equally
with all other unsecured and unsubordinated indebtedness of the
Company. The Subordinated Debt Securities will be subordinated to
all existing and future Senior Debt of the Company, as defined.
See "Description of Debt Securities."
The specific terms of the Offered Securities in respect of
which this Prospectus is being delivered will be set forth in the
applicable Prospectus Supplement and will include, where
applicable: (i) in the case of Debt Securities, the specific
title, aggregate principal amount, currency, form (which may be
registered or bearer, or certificated or global), authorized
denominations, maturity, rate (or manner of calculation thereof)
and time of payment of interest, terms for redemption at the
option of the Company or repayment at the option of the Holder,
terms for sinking fund payments, terms for conversion into
Preferred Stock, Common Stock or other Company securities,
additional covenants, and any initial public offering price; (ii)
in the case of Preferred Stock, the specific title and stated
value, any dividend, liquidation, redemption, conversion, voting
and other rights, and any initial public offering price; (iii) in
the case of Depositary Shares, the fractional share of Preferred
Stock represented by each such Depositary Share; (iv) in the case
of Common Stock, any initial public offering price; and (v) in
the case of Common Stock Warrants, the duration, offering price,
exercise price and detachability. In addition, such specific
terms may include limitations on direct or beneficial ownership
and restrictions on transfer of the Offered Securities, in each
case as may be appropriate to preserve the status of the Company
as a real estate investment trust for federal income tax
purposes.
The applicable Prospectus Supplement will also contain
information, where applicable, about certain United States
federal income tax considerations relating to, and any listing on
a securities exchange of, the Offered Securities covered by such
Prospectus Supplement.
The Offered Securities may be offered directly by the
Company, through agents designated from time to time by the
Company, or to or through underwriters or dealers. If any agents
or underwriters are involved in the sale of any of the Offered
Securities, their names, and any applicable purchase price, fee,
commission or discount arrangement between or among them, will be
set forth, or will be calculable from the information set forth,
in the applicable Prospectus Supplement. See "Plan of
Distribution." No Offered Securities may be sold without delivery
of the applicable Prospectus Supplement describing the Offered
Securities and the method and terms of the offering.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE 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.
The date of this Prospectus is January 22, 1996.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the information 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 Securities and Exchange
Commission (the "Commission"). Reports, proxy statements and
other information filed by the Company can be inspected and
copied at the public reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, and
its Regional Offices located at: 75 Park Place, New York, New
York 10017; and 500 West Madison Street, Chicago, Illinois 60661;
and can also be inspected and copied at the offices of the New
York Stock Exchange at 20 Broad Street, New York, New York 10005.
Copies of such material can be obtained from the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Washington,
D.C. 20549, upon payment of the prescribed fees.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company has filed a registration statement with the
Commission under the Securities Act of 1933, as amended (the
"Securities Act"), with respect to the Offered Securities (the
"Registration Statement"). As permitted by the rules and
regulations of the Commission, this Prospectus does not contain
all of the information set forth in the Registration Statement.
For further information, reference is made to such Registration
Statement and to the exhibits, which may be inspected and copied
at or obtained from the Commission's public reference facilities,
450 Fifth Street, N.W., Washington, D.C. 20549 upon payment of
the prescribed fees. Each statement made in this Prospectus with
respect to a document that is filed as an exhibit to the
Registration Statement is qualified by reference to such exhibit
for a complete statement of the terms and conditions thereof.
There are incorporated herein by reference the following
documents heretofore filed by the Company with the Commission:
i. the Company's annual report on Form 10-K for the
year ended December 31, 1994;
ii. the Company's quarterly reports on Form 10-Q for
the quarters ended March 31, 1995, June 30, 1995
and September 30, 1995;
iii. the Company's current reports on Form 8-K filed
on February 14, 1995, March 13, 1995, June 8,
1995, June 19, 1995, June 23, 1995, July 14, 1995,
September 1, 1995, September 14, 1995 and
November 8, 1995;
iv. the Company's current reports on Form 8-K/A filed
on January 24, 1995 amending the Company's report
on Form 8-K filed on November 3, 1994, February 7,
1995 amending the Company's report on Form 8-K
filed on August 15, 1994, June 21, 1995 amending
the Company's report on Form 8-K filed on June 19,
1995, September 18, 1995 amending the Company's
report on Form 8-K filed on June 8, 1995, and
December 1, 1995 amending the Company's report on
Form 8-K filed on September 14, 1995;
v. the description of the Company's Common Stock,
$1.75 Series A Cumulative Convertible Preferred
Stock and $2.15 Series C Cumulative Convertible
Preferred Stock contained in the Company's
registration statements on Form 8-A filed under
the Exchange Act, including any amendments or
reports filed for the purpose of updating such
descriptions; and
vi. the Company's definitive proxy statement dated
March 27, 1995 relating to the annual meeting of
shareholders held on April 17, 1995.
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
shall be deemed to be incorporated by reference into this
Prospectus and to be a part hereof from the date of filing such
documents.
Any statement contained herein or in a document incorporated
herein by reference or deemed to be incorporated herein by
reference shall be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein, in
any accompanying Prospectus Supplement relating to a specific
offering of Offered Securities or in any other amendment or
supplement hereto or document subsequently incorporated herein by
reference, 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.
Copies of all documents incorporated herein by reference,
other than exhibits to such documents (unless such exhibits are
specifically incorporated by reference into the information that
this Prospectus incorporates), will be provided without charge to
each person who receives a copy of this Prospectus on the written
or oral request of such person directed to W. Hale Barrett, the
Company's Secretary, 624 Ellis Street, Augusta, Georgia 30901,
telephone number (706) 722-6756.
THE COMPANY
Merry Land is one of the largest owners and operators of
upscale garden apartments in the Southern region of the United
States. Merry Land became an independent publicly owned company
in 1981 and has been managing apartment communities since 1982.
The Company is a self-administered and self-managed real estate
investment trust ("REIT") headquartered in Augusta, Georgia. At
December 15, 1995, the Company owned 78 apartment communities
containing 21,705 units and having an aggregate cost of $969.8
million. At September 30, 1995, the communities had an average
occupancy of 95.2% and an average monthly rental rate of $624.
The Company's apartment communities are located in Florida,
Georgia, Maryland, North Carolina, Ohio, South Carolina,
Tennessee, Texas and Virginia.
Merry Land is a Georgia corporation. The Company's principal
office is located at 624 Ellis Street, Augusta, Georgia 30901 and
its telephone number is (706) 722-6756.
USE OF PROCEEDS
Unless otherwise set forth in the applicable Prospectus
Supplement, the net proceeds from the sale of the Offered
Securities will be used for general corporate purposes, which may
include repayment of indebtedness, making improvements to
apartment properties, the acquisition of additional apartment
properties and the development and construction of new apartment
properties.
CERTAIN RATIOS
The following table sets forth the Company's ratio of
earnings to fixed charges and ratio of earnings to combined fixed
charges and Preferred Stock dividends for the periods shown.
<TABLE>
<CAPTION>
Year Ended December 31,
1990 1991 1992 1993 1994
----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C>
Ratio of earnings to fixed
charges 1.26x 1.69x 2.98x 5.58x 4.44x
Ratio of earnings to
combined fixed charges and
Preferred Stock dividends 1.26x 1.69x 2.98x 3.29x 2.56x
</TABLE>
The ratio of earnings to fixed charges was computed by
dividing earnings by fixed charges. The ratio of earnings to
combined fixed charges and Preferred Stock dividends was computed
by dividing earnings by fixed charges and Preferred Stock
dividends. For the purpose of computing these ratios, earnings
consist of income before taxes plus fixed charges. Fixed charges
consist of interest on borrowed funds and amortization of debt
discount and expense. Preferred Stock dividends consist of those
dividends paid on the Company's $1.75 Series A Cumulative
Convertible Preferred Stock (the "Series A Preferred Stock") and
$2.205 Series B Cumulative Convertible Preferred Stock (the
"Series B Preferred Stock") during the respective periods set
forth in the preceding table.
DESCRIPTION OF DEBT SECURITIES
General
The Senior Debt Securities are to be issued under an
indenture dated as of February 1, 1995, as supplemented by a
supplemental indenture dated as of June 1, 1995 and as may be
further supplemented from time to time (the "Senior Indenture"),
between the Company and First Union National Bank of Georgia (the
"Senior Indenture Trustee"), and the Subordinated Debt Securities
are to be issued under an indenture dated as of February 1, 1995,
as supplemented from time to time (the "Subordinated Indenture"),
between the Company and First Union National Bank of Georgia (the
"Subordinated Indenture Trustee"). The term "Trustee," as used
herein, shall refer to the Senior Indenture Trustee or the
Subordinated Indenture Trustee, as appropriate. The Senior
Indenture and the form of the Subordinated Indenture (being
sometimes referred to herein collectively as the "Indentures" and
individually as an "Indenture") are filed as exhibits to the
Registration Statement and are available for inspection at the
corporate trust office of the Senior Indenture Trustee in
Atlanta, Georgia and the corporate trust office of the
Subordinated Indenture Trustee in Atlanta, Georgia or as
described under "Available Information." The Indentures are
subject to and governed by the Trust Indenture Act of 1939, as
amended (the "TIA"). The statements made herein relating to the
Indentures and the Debt Securities are summaries of certain
provisions thereof, do not purport to be complete and are subject
to, and are qualified in their entirety by reference to, all
provisions of the Indentures and the Debt Securities. All
section references appearing herein are to sections of the
Indentures, and capitalized terms used but not defined herein
have the respective meanings set forth in the Indentures and the
Debt Securities.
Terms
The Debt Securities will be direct, unsecured obligations of
the Company. The indebtedness represented by the Senior Debt
Securities will rank equally with all other unsecured and
unsubordinated indebtedness of the Company. The indebtedness
represented by the Subordinated Debt Securities will be
subordinated in right of payment to the prior payment in full of
the Senior Debt of the Company, as described under
"Subordination".
Each Indenture provides that the Debt Securities may be
issued without limit as to aggregate principal amount, in one or
more series, in each case as established from time to time in or
pursuant to authority granted by a resolution of the Board of
Directors of the Company or as established in one or more
supplemental indentures to such Indenture. Debt Securities may be
issued with terms different from those of Debt Securities
previously issued; all Debt Securities of one series need not be
issued at the same time and, unless otherwise provided, a series
may be reopened, without the consent of the Holders of the Debt
Securities of such series, for issuances of additional Debt
Securities of such series (Section 301 of each Indenture).
Each Indenture provides that there may be more than one
Trustee thereunder, each with respect to one or more series of
Debt Securities. Any Trustee under either Indenture may resign
or be removed with respect to one or more series of Debt
Securities, and a successor Trustee may be appointed to act with
respect to such series (Section 608 of each Indenture). In the
event that two or more persons are acting as Trustee with respect
to different series of Debt Securities, each such Trustee shall
be a Trustee of a trust under the applicable Indenture separate
and apart from the trust administered by any other Trustee
(Sections 101 and 609 of each Indenture), and, except as
otherwise indicated herein, any action described herein to be
taken by the Trustee may be taken by each such Trustee with
respect to, and only with respect to, the one or more series of
Debt Securities for which it is Trustee under the applicable
Indenture.
Reference is made to the Prospectus Supplement relating to
the series of Debt Securities being offered for the specific
terms thereof, including:
1. the title of such Debt Securities and whether such Debt
Securities are Senior Debt Securities or Subordinated
Debt Securities;
2. the aggregate principal amount of such Debt Securities
and any limit on such principal amount;
3. the percentage of the principal amount at which such
Debt Securities will be issued and, if other than the
principal amount thereof, the portion of the principal
amount payable upon declaration of acceleration of the
maturity thereof, or (if applicable) the portion of the
principal amount of such Debt Securities that is
convertible into Capital Stock (as defined in the
Indentures), or the method by which any such portion
will be determined;
4. if convertible, any applicable limitations on the
ownership or transferability of the Capital Stock into
which such Debt Securities are convertible;
5. the date or dates, or the method by which such date or
dates will be determined, on which the principal of
such Debt Securities will be payable and the amount of
principal payable thereon;
6. the rate or rates (which may be fixed or variable) at
which such Debt Securities will bear interest, if any,
or the method by which such rate or rates will be
determined, the date or dates from which such interest
will accrue or the method by which such date or dates
will be determined, the Interest Payment Dates on which
any such interest will be payable and the Regular
Record Dates, if any, for such Interest payable on any
Registered Security on any Interest Payment Dates, or
the method by which such Dates will be determined, and
the basis upon which interest will be calculated if
other than that of a 360-day year consisting of twelve
30-day months;
7. the place or places where the principal of (and premium
or Make-Whole Amount (as defined), if any), interest,
if any, on, and Additional Amounts, if any, payable in
respect of, such Debt Securities will be payable, where
such Debt Securities may be surrendered for
registration of transfer, conversion or exchange and
where notices or demands to or upon the Company in
respect of such Debt Securities and the applicable
Indenture may be served;
8. the period or periods within which, the price or prices
(including premium or Make-Whole Amount, if any) at
which, the currency or currencies, currency unit or
units or composite currency or currencies in which and
other terms and conditions upon which such Debt
Securities may be redeemed in whole or in part, at the
option of the Company, if the Company is to have the
option;
9. the obligation, if any, of the Company to redeem, repay
or purchase such Debt Securities pursuant to any
sinking fund or analogous provision or at the option of
a Holder thereof, and the period or periods within
which or the date or dates on which, the price or
prices at which, the currency or currencies, currency
unit or units or composite currency or currencies in
which, and other terms and conditions upon which such
Debt Securities will be redeemed, repaid or purchased,
in whole or in part, pursuant to such obligation;
10. whether such Debt Securities will be in registered or
bearer form and terms and conditions relating thereto,
and, if other than $1,000 and any integral multiple
thereof, the denominations in which any registered Debt
Securities will be issuable and, if other than $5,000,
the denomination or denominations in which any bearer
Debt Securities will be issuable;
11. if other than United States dollars, the currency or
currencies in which such Debt Securities will be
denominated and payable, which may be a foreign
currency or units of two or more foreign currencies or
a composite currency or currencies;
12. whether the amount of payment of principal of (and
premium or Make-Whole Amount, if any) or interest, if
any, on such Debt Securities may be determined with
reference to an index, formula or other method (which
index, formula or method may be based, without
limitation, on one or more currencies, currency units,
composite currencies, commodities, equity indices or
other indices), and the manner in which such amounts
will be determined;
13. whether the principal of (and premium or Make-Whole
Amount, if any) or interest or Additional Amounts, if
any, on such Debt Securities are to be payable, at the
election of the Company or a Holder thereof, in a
currency or currencies, currency unit or units or
composite currency or currencies other than that in
which such Debt Securities are denominated or stated to
be payable, the period or periods within which, and the
terms and conditions upon which, such election may be
made, and the time and manner of, and identity of the
exchange rate agent with responsibility for,
determining the exchange rate between the currency or
currencies, currency unit or units or composite
currency or currencies in which such Debt Securities
are denominated or stated to be payable and the
currency or currencies, currency unit or units or
composite currency or currencies in which such Debt
Securities are to be so payable;
14. provisions, if any, granting special rights to the
Holders of such Debt Securities upon the occurrence of
such events as may be specified;
15. any deletions from, modifications of or additions to
the Events of Default or covenants of the Company with
respect to such Debt Securities, whether or not such
Events of Default or covenants are consistent with the
Events of Default or covenants set forth in the
applicable Indenture;
16. whether such Debt Securities will be issued in
certificated or book-entry form and terms and
conditions related thereto;
17. the applicability, if any, of the defeasance and
covenant defeasance provisions of Article Fourteen of
the applicable Indenture;
18. whether and under what circumstances the Company will
pay Additional Amounts as contemplated in the Indenture
on such Debt Securities to any Holder who is not a
United States person in respect of any tax, assessment
or governmental charge and, if so, whether the Company
will have the option to redeem such Debt Securities
rather than pay such Additional Amounts (and the terms
of any such option);
19. the obligation, if any, of the Company to permit the
conversion of the Debt Securities of such series into
shares of Capital Stock of the Company and the terms
and conditions upon which such conversion shall be
effected; and
20. any other terms of such Debt Securities, which terms
shall not be inconsistent with the provisions of the
applicable Indenture (Section 301 of each Indenture).
The Debt Securities may provide for less than the entire
principal amount thereof to be payable upon declaration of
acceleration of the maturity thereof ("Original Issue Discount
Securities") (Section 502 of each Indenture). Any special United
States federal income tax, accounting and other considerations
applicable to Original Issue Discount Securities will be
described in the applicable Prospectus Supplement.
Denominations, Interest, Registration and Transfer
Unless otherwise specified in the applicable Prospectus
Supplement, the Debt Securities of any series issued in
registered form will be issuable in denominations of $1,000 and
integral multiples thereof. Unless otherwise specified in the
applicable Prospectus Supplement, the Debt Securities of any
series issued in bearer form will be issuable in denominations of
$5,000 (Section 302 of each Indenture).
Unless otherwise specified in the applicable Prospectus
Supplement, the principal of (and premium or Make-Whole Amount,
if any) and interest on any series of Senior Debt Securities will
be payable at the corporate trust office of the Senior Indenture
Trustee located at Corporate Trust Administration, 999 Peachtree
Street, N.E., Suite 1100, Atlanta, Georgia 30309, and the
principal of (and premium or Make-Whole Amount, if any) and
interest on any series of Subordinated Debt Securities will be
payable at the corporate trust office of the Subordinated
Indenture Trustee located at Corporate Trust Administration, 999
Peachtree Street, N.E., Suite 1100, Atlanta, Georgia 30309;
provided that at the option of the Company payment of interest on
any series of Debt Securities may be made by check mailed to the
address of the Person entitled thereto as it appears in the
Security Register for such series or by wire transfer of funds to
such Person at an account maintained within the United States
(Sections 301, 305, 306, 307 and 1002 of each Indenture).
Any interest not punctually paid or duly provided for on any
Interest Payment Date with respect to a Debt Security ("Defaulted
Interest") will forthwith cease to be payable to the Holder on
the applicable Regular Record Date and may either be paid to the
Person in whose name such Debt Security is registered at the
close of business on a special record date (the "Special Record
Date") for the payment of such Defaulted Interest to be fixed by
the Trustee, in which case notice thereof shall be given to the
Holder of such Debt Security not less than 10 days prior to such
Special Record Date, or may be paid at any time in any other
lawful manner, all as more completely described in the applicable
Indenture (Section 307 of each Indenture).
Subject to certain limitations imposed upon Debt Securities
issued in book-entry form, the Debt Securities of any series will
be exchangeable for other Debt Securities of the same series and
of a like aggregate principal amount and tenor of different
authorized denominations upon surrender of such Debt Securities
at the corporate trust office of the Trustee referred to above.
In addition, subject to certain limitations imposed upon Debt
Securities issued in book-entry form, the Debt Securities of any
series may be surrendered for conversion or registration of
transfer thereof at the corporate trust office of the Trustee
referred to above. Every Debt Security surrendered for
conversion, registration or transfer or exchange shall be duly
endorsed or accompanied by a written instrument of transfer. No
service charge will be made for any registration or transfer or
exchange of any Debt Securities, but the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith (Section 305
of each Indenture). If the applicable Prospectus Supplement
refers to any transfer agent (in addition to the Trustee)
initially designated by the Company with respect to any series of
Debt Securities, the Company may at any time rescind the
designation of any such transfer agent or approve a change in the
location through which such transfer agent acts, except that the
Company will be required to maintain a transfer agent in each
Place of Payment for such series. The Company may at any time
designate additional transfer agents with respect to any series
of Debt Securities (Section 1002 of each Indenture).
Neither the Company nor the Trustee shall be required to (i)
issue, register the transfer of or exchange Debt Securities of
any series during a period beginning at the opening of business
15 days before any selection of Debt Securities of that series to
be redeemed and ending at the close of business on the day of
mailing or publication of the relevant notice of redemption; (ii)
register the transfer of or exchange any Registered Security, or
portion thereof, called for redemption, except the unredeemed
portion of any Registered Security being redeemed in part; (iii)
exchange any Bearer Security selected for redemption, except that
such a Bearer Security may be exchanged for a Registered Security
of that series and like tenor, provided that such Registered
Security shall be simultaneously surrendered for redemption; or
(iv) issue, register the transfer of or exchange any Debt
Security which has been surrendered for repayment at the option
of the Holder, except the portion, if any, of such Debt Security
not to be so repaid (Section 305 of each Indenture).
Merger, Consolidation or Sale
The Company may consolidate with, or sell, lease or convey
all or substantially all of its assets to, or merge with or into,
any other entity, provided that (a) either the Company shall be
the continuing entity, or the successor entity (if other than the
Company) formed by or resulting from any such consolidation or
merger or which shall have received the transfer of such assets
is a Person organized and existing under the laws of the United
States or any State thereof and shall expressly assume payment of
the principal of (and premium or Make-Whole Amount, if any) and
interest (including all Additional Amounts, if any) on all of the
Debt Securities and the due and punctual performance and
observance of all of the covenants and conditions contained in
each Indenture; (b) immediately after giving effect to such
transaction and treating any indebtedness which becomes an
obligation of the Company or any Subsidiary as a result thereof
as having been incurred by the Company or such Subsidiary at the
time of such transaction, no Event of Default under an Indenture,
and no event which, after notice or the lapse of time, or both,
would become such an Event of Default, shall have occurred and be
continuing; and (c) an Officers' Certificate and legal opinion
covering such conditions shall be delivered to the Trustee
(Sections 801 and 803 of each Indenture).
Certain Covenants
Existence. Except as described above under "Merger,
Consolidation or Sale," the Company will do or cause to be done
all things necessary to preserve and keep in full force and
effect the existence, rights (charter and statutory) and
franchises of the Company and its Subsidiaries; provided,
however, that the Company shall not be required to preserve any
right or franchise if it determines that the preservation thereof
is no longer desirable in the conduct of the business of the
Company and its Subsidiaries as a whole and that the loss thereof
is not disadvantageous in any material respect to the Holders of
the Debt Securities of any series (Section 1005 of each
Indenture).
Maintenance of Properties. The Company will cause all of
its properties used or useful in the conduct of its business or
the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all
necessary equipment and will cause to be made all necessary
repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary
so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided,
however, that the Company and its Subsidiaries shall not be
prevented from selling or otherwise disposing of for value their
properties in the ordinary course of business (Section 1006 of
each Indenture).
Insurance. The Company will, and will cause each of its
Subsidiaries to, keep all of its insurable properties insured
against loss or damage in an amount at least equal to their then
full insurable value with financially sound and reputable
insurance companies (Section 1007 of each Indenture).
Payment of Taxes and other Claims. The Company will pay or
discharge or cause to be paid or discharged, before the same
become delinquent, (i) all taxes, assessments and governmental
charges levied or imposed upon it or any Subsidiary or upon the
income, profits or property of the Company or any Subsidiary, and
(ii) all lawful claims for labor, materials and supplies which,
if unpaid, might by law become a lien upon the property of the
Company or any Subsidiary; provided, however, that the Company
shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose
amount, applicability or validity is being contested in good
faith by appropriate proceedings (Section 1008 of each
Indenture).
Provision of Financial Information. Whether or not the
Company is subject to Section 13 or 15(d) of the Exchange Act,
the Company will, to the extent permitted under the Exchange Act,
file with the Commission the annual reports, quarterly reports
and other documents which the Company would have been required to
file with the Commission pursuant to such Section 13 and 15(d) if
the Company were so subject, such documents to be filed with the
Commission on or prior to the respective dates (the "Required
Filing Dates") by which the Company would have been required so
to file such documents if the Company were so subject. The
Company will also in any event (x) within 15 days of each
Required Filing Date (i) transmit by mail to all Holders of Debt
Securities, as their names and addresses appear in the Security
Register, without cost to such Holders, copies of the annual
reports and quarterly reports which the Company would have been
required to file with the Commission pursuant to Section 13 or
15(d) of the Exchange Act if the Company were subject to such
Sections and (ii) file with the Trustee copies of the annual
reports, quarterly reports and other documents which the Company
would have been required to file with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act if the Company were
subject to such Sections and (y) if filing such documents by the
Company with the Commission is not permitted under the Exchange
Act, promptly upon written request and payment of the reasonable
cost of duplication and delivery, supply copies of such documents
to any prospective Holder (Section 1009 of each Indenture).
Waiver of Certain Covenants. The Company may omit to comply
with any term, provision or condition of the foregoing covenants,
and with any other term, provision or condition with respect to
the Debt Securities of any series specified in Section 301 of the
Indentures (except any such term, provision or condition which
could not be amended without the consent of all Holders of Debt
Securities of such series), if before or after the time for such
compliance the Holders of at least a majority in principal amount
of all outstanding Debt Securities of such series, by act of such
Holders, either waive such compliance in such instance or
generally waive compliance with such covenant or condition, but
no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and until
such waiver shall become effective, the obligations of the
Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and
effect (Section 1012 of each Indenture).
Additional Covenants. The Prospectus Supplement for a
particular series of Debt Securities may contain additional
covenants of the Company with respect to such series of Debt
Securities.
Events of Default, Notice and Waiver
Each Indenture provides that the following events are
"Events of Default" with respect to any series of Debt Securities
issued thereunder: (a) default for 30 days in the payment of any
installment of interest or Additional Amounts payable on any Debt
Security of such series: (b) default in the payment of the
principal of (or premium or Make-Whole Amount, if any, on) any
Debt Security of such series at its Maturity; (c) default in
making any sinking fund payment as required for any Debt Security
of such series; (d) default in the performance of any other
covenant of the Company contained in the Indenture (other than a
covenant added to the Indenture solely for the benefit of a
series of Debt Securities issued thereunder other than such
series), continued for 60 days after written notice as provided
in the Indenture; (e) default under any bond, debenture, note,
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 (or by any Subsidiary, the
repayment of which the Company has guaranteed or for which the
Company is directly responsible or liable as obligor or
guarantor) having an aggregate principal amount outstanding of at
least $10,000,000, whether such indebtedness now exists or shall
hereafter be created, which default shall have resulted in such
indebtedness being declared due and payable prior to the date on
which it would otherwise have become due and payable, without
such acceleration having been rescinded or annulled within 10
days after written notice to the Company as provided in the
Indenture; (f) the entry by a court of competent jurisdiction of
one or more judgments, orders or decrees against the Company or
any Subsidiary in an aggregate amount (excluding amounts fully
covered by insurance) in excess of $10,000,000 and such
judgments, orders or decrees remain undischarged, unstayed and
unsatisfied in an aggregate amount (excluding amounts fully
covered by insurance) in excess of $10,000,000 for a period of 30
consecutive days; (g) certain events of bankruptcy, insolvency or
reorganization, or court appointment of a receiver, liquidator or
trustee of the Company or any Significant Subsidiary or for all
or substantially all of the property of the Company or any
Significant Subsidiary; and (h) any other Event of Default
provided with respect to such series of Debt Securities (Section
501 of each Indenture). The term "Significant Subsidiary" means
each significant subsidiary (as defined in Regulations S-X
promulgated under the Securities Act) of the Company.
If an Event of Default under either Indenture with respect
to Debt Securities of any series at the time outstanding occurs
and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the
Outstanding Debt Securities of that series may declare the
principal amount (or, if the Debt Securities of that series are
Original Issue Discount Securities or Indexed Securities, such
portion of the principal amount as may be specified in the terms
thereof) of, and premium or Make-Whole Amount, if any, on, all of
the Debt Securities of that series to be due and payable
immediately by written notice thereof to the Company (and to the
Trustee if given by the Holders). However, at any time after
such declaration of acceleration with respect to Debt Securities
of such series (or of all Debt Securities then Outstanding under
the applicable Indenture, as the case may be) has been made, but
before a judgment or decree for payment of the money due has been
obtained by the Trustee, the Holders of not less than a majority
in principal amount of the Outstanding Debt Securities of such
series (or of all Debt Securities then Outstanding under the
applicable Indenture, as the case may be) may rescind and annul
such declaration and its consequences if (a) the Company shall
have deposited with the Trustee all required payments of the
principal of (and premium or Make-Whole Amount, if any) and
interest, and any Additional Amounts, on the Debt Securities of
such series (or of all Debt Securities then Outstanding under the
applicable Indenture, as the case may be), plus certain fees,
expenses, disbursements and advances of the Trustee and (b) all
Events of Default, other than the nonpayment of accelerated
principal (or specified portion thereof and the premium or Make-Whole
Amount, if any) or interest, with respect to the Debt
Securities of such series (or of all Debt Securities then
Outstanding under the applicable Indenture, as the case may be)
have been cured or waived as provided in the Indenture (Section
502 of each Indenture). Each Indenture also provides that the
Holders of not less than a majority in principal amount of the
Outstanding Debt Securities of any series (or of all Debt
Securities then Outstanding under the applicable Indenture, as
the case may be) may waive any past default with respect to such
series and its consequences, except a default (x) in the payment
of the principal of (or premium or Make-Whole Amount, if any) or
interest or Additional Amounts payable on any Debt Security of
such series or (y) in respect of a covenant or provision
contained in the applicable Indenture that cannot be modified or
amended without the consent of the Holder of each Outstanding
Debt Security affected thereby (Section 513 of each Indenture).
The Trustee is required to give notice to the Holders of
Debt Securities within 90 days of a default under the applicable
Indenture; provided, however, that such Trustee may withhold
notice to the Holders of any series of Debt Securities of any
default with respect to such series (except a default in the
payment of the principal of (or premium or Make-Whole Amount, if
any) or interest or Additional Amounts payable on any Debt
Security of such series or in the payment of any sinking fund
installment in respect of any Debt Security of such series) if
the Responsible Officers of such Trustee consider such
withholding to be in the interest of such Holders (Section 601 of
each Indenture).
Each Indenture provides that no Holders of Debt Securities
of any series may institute any proceedings, judicial or
otherwise, with respect to such Indenture or for any remedy
thereunder, except in the case of failure of the Trustee, for 60
days, to act after it has received a written request to institute
proceedings in respect of an Event of Default from the Holders of
not less than 25% in principal amount of the Outstanding Debt
Securities of such series, as well as an offer of reasonable
indemnity (Section 507 of each Indenture). This provision will
not prevent, however, any Holder of Debt Securities from
instituting suit for the enforcement of payment of the principal
of (and premium or Make-Whole Amount, if any), interest on and
Additional Amounts payable with respect to, such Debt Securities
at the respective due dates or redemption dates thereof (Section
508 of each Indenture).
Modification of the Indentures
Modifications and amendment of either Indenture may be made
with the consent of the Holders of not less than a majority in
principal amount of all Outstanding Debt Securities issued under
such Indenture that are affected by such modification or
amendment; provided, however, that no such modification or
amendment may, without the consent of the Holder of each such
Debt Security affected thereby, (a) change the stated Maturity of
the principal of (or premium or Make-Whole Amount, if any), or
any installment of principal of or interest or Additional Amounts
payable on, any such Debt Security; (b) reduce the principal
amount of, or the rate or amount of interest on, or any premium
or Make-Whole Amount payable on redemption of, or any Additional
Amount payable with respect to, any such Debt Security, or reduce
the amount of principal of an Original Issue Discount Security or
Make-Whole Amount, if any, that would be due and payable upon
declaration of acceleration of the maturity thereof or would be
provable in bankruptcy, or adversely affect any right of
repayment of the Holder of any such Debt Security; (c) change the
Place of Payment, or the coin or currency, for payment of
principal of (and premium or Make-Whole Amount, if any), or
interest on, or any Additional Amounts payable with respect to,
any such Debt Security; (d) impair the right to institute suit
for the enforcement of any payment on or with respect to any such
Debt Security; (e) reduce the percentage of Outstanding Debt
Securities of any series, the consent of whose Holders is
necessary to modify or amend the applicable Indenture, to waive
compliance with certain provisions thereof or certain defaults
and consequences thereunder or to reduce the quorum or voting
requirements set forth in the Indenture; or (f) modify any of the
foregoing provisions or any of the provisions relating to the
waiver of certain past defaults or certain covenants, except to
increase the required percentage to effect such action or to
provide that certain other provisions may not be modified or
waived without the consent of the Holder of each such Debt
Security (Section 902 of each Indenture).
The Holders of not less than a majority in principal amount
of Outstanding Debt Securities issued under either Indenture have
the right to waive compliance by the Company with certain
covenants in such Indenture (Section 1012 of each Indenture).
Modifications and amendments of either Indenture may be made
by the Company and the respective Trustee thereunder without the
consent of any Holder of Debt Securities for any of the following
purposes:
i. to evidence the succession of another Person to
the Company as obligor under such Indenture;
ii. to add to the covenants of the Company for the
benefit of the Holders of all or any series of
Debt Securities or to surrender any right or power
conferred upon the Company in such Indenture;
iii. to add Events of Default for the benefit of the
Holders of all or any series of Debt Securities;
iv. to add or change any provisions of either
Indenture to facilitate the issuance of, or to
liberalize certain terms of, Debt Securities in
bearer form, or to permit or facilitate the
issuance of Debt Securities in uncertificated form
provided that such action shall not adversely
affect the interests of the Holders of the Debt
Securities of any series in any material respect;
v. to add, change or eliminate any provisions of
either Indenture, provided that any such addition,
change or elimination shall become effective only
when there are no Debt Securities Outstanding of
any series created prior thereto which are
entitled to the benefit of such provision;
vi. to secure the Debt Securities;
vii. to establish the form or terms of Debt Securities
of any series, including the provisions and
procedures, if applicable, for the conversion of
such Debt Securities into Common Stock or
Preferred Stock of the Company;
viii. to provide for the acceptance of appointment
by a successor Trustee or facilitate the
administration of the trusts under either
Indenture by more than one Trustee;
ix. to cure any ambiguity, defect or inconsistency in
either Indenture, provided that such action shall
not adversely affect the interests of Holders of
Debt Securities of any series issued under such
Indenture;
x. to close either Indenture with respect to the
authentication and delivery of additional series
of Debt Securities or to qualify, or maintain
qualification of, either Indenture under the Trust
Indenture Act; or
xi. to supplement any of the provisions of either
Indenture to the extent necessary to permit or
facilitate defeasance and discharge of any series
of such Debt Securities, provided that such action
shall not adversely affect the interests of the
Holders of the Debt Securities of any series in
any material respect (Section 901 of each
Indenture).
Subordination
Upon any distribution to creditors of the Company in a
liquidation, dissolution, bankruptcy, insolvency or
reorganization, the payment of the principal of and interest on
the Subordinated Debt Securities will be subordinated to the
extent provided in the Subordinated Indenture in right of payment
to the prior payment in full of all Senior Debt (Sections 1601
and 1602 of the Subordinated Indenture), but the obligation of
the Company to make payment of the principal and interest on the
Subordinated Debt Securities will not otherwise be affected
(Section 1608 of the Subordinated Indenture). No payment of
principal or interest may be made on the Subordinated Debt
Securities at any time if a default on Senior Debt exists that
permits the holders of such Senior Debt to accelerate its
maturity and the default is the subject of judicial proceedings
or the Company receives notice of the default (Section 1603 of
the Subordinated Indenture). The Company may resume payments on
the Subordinated Debt Securities when the default is cured or
waived, or 120 days pass after the notice is given if the default
is not the subject of judicial proceedings, if the subordination
provisions of the Subordinated Indenture otherwise permit payment
at that time (Section 1603 of the Subordinated Indenture). After
all Senior Debt is paid in full and until the Subordinated Debt
Securities are paid in full, Holders will be subrogated to the
rights of holders of Senior Debt to the extent that distributions
otherwise payable to holders have been applied to the payment of
Senior Debt (Section 1607 of the Subordinated Indenture). By
reason of such subordination, in the event of a distribution of
assets upon insolvency, certain general creditors of the Company
may recover more, ratably, than holders of the Subordinated Debt
Securities.
Senior Debt is defined in the Subordinated Indenture as the
principal of and interest on, or substantially similar payments
to be made by the Company in respect of, the following, whether
outstanding at the date of execution of the Subordinated
Indenture or thereafter incurred, created or assumed: (a)
indebtedness of the Company for money borrowed or represented by
purchase-money obligations, (b) indebtedness of the Company
evidenced by notes, debentures, or bonds, or other securities
issued under the provisions of an indenture, fiscal agency
agreement or other instrument, (c) obligations of the Company as
lessee under leases of property either made as part of any sale
and leaseback transaction to which the Company is a party or
otherwise, (d) indebtedness of partnerships and joint ventures
that is included in the consolidated financial statements of the
Company, (e) indebtedness, obligations and liabilities of others
in respect of which the Company is liable contingently or
otherwise to pay or advance money or property or as guarantor,
endorser or otherwise or which the Company has agreed to purchase
or otherwise acquire, and (f) any binding commitment of the
Company to fund any real estate investment or to fund any
investment in any entity making such real estate investment, in
each case other than (1) any such indebtedness, obligation or
liability referred to in clauses (a) through (f) above as to
which, in the instrument creating or evidencing the same pursuant
to which the same is outstanding, it is provided that such
indebtedness, obligation or liability is not superior in right of
payment to the Subordinated Debt Securities or ranks pari passu
with the Subordinated Debt Securities, (2) any such indebtedness,
obligation or liability which is subordinated to indebtedness of
the Company to substantially the same extent as or to a greater
extent than the Subordinated Debt Securities are subordinated,
and (3) the Subordinated Debt Securities (Section 101 of the
Subordinated Indenture). At December 15, 1995, Senior Debt
aggregated approximately $360.0 million. There are no
restrictions in the Subordinated Indenture upon the creation of
additional Senior Debt or other indebtedness.
Discharge, Defeasance and Covenant Defeasance
Under each Indenture, the Company may discharge certain
obligations to Holders of any series of Debt Securities issued
thereunder that have not already been delivered to the applicable
Trustee for cancellation and that either have become due and
payable or will become due and payable within one year (or
scheduled for redemption within one year) by irrevocably
depositing with the applicable Trustee, in trust, funds in such
currency or currencies, currency unit or units or composite
currency or currencies in which such Debt Securities are payable
in an amount sufficient to pay the entire indebtedness on such
Debt Securities in respect of principal (and premium or Make-Whole
Amount, if any) and interest and any Additional Amounts
payable to the date of such deposit (if such Debt Securities have
become due and payable) or to the Stated Maturity or Redemption
Date, as the case may be (Section 401 of each Indenture).
Each Indenture provides that, if the provisions of Article
Fourteen thereof are made applicable to the Debt Securities of or
within any series pursuant to Section 301 of such Indenture, the
Company may elect either (a) to defease and be discharged from
any and all obligations with respect to such Debt Securities
(except for the obligation to pay Additional Amounts, if any,
upon the occurrence of certain events of tax assessment or
governmental charge with respect to payments on such Debt
Securities and the obligations to register the transfer or
exchange of such Debt Securities, to replace temporary,
mutilated, destroyed, lost or stolen Debt Securities, to maintain
an office or agency in respect of such Debt Securities and to
hold moneys for payment in trust) ("defeasance") (Section 1402 of
each Indenture) or (b) to be released from its obligations with
respect to such Debt Securities under provisions of each
Indenture described under "Certain Covenants," or, if provided
pursuant to Section 301 of each Indenture, its obligations with
respect to any other covenant, and any failure to comply with
such obligations shall not constitute a default or an Event or
Default with respect to such Debt Securities ("covenant
defeasance") (Section 1403 of each Indenture), in either case
upon the irrevocable deposit by the Company with the applicable
Trustee, in trust, of an amount, in such currency or currencies,
currency unit or currency units or composite currency or
currencies in which such Debt Securities are payable at Stated
Maturity, or Government Obligations (as defined below), or both,
applicable to such Debt Securities which through the scheduled
payment of principal and interest in accordance with their terms
will provide money in an amount sufficient to pay the principal
of (and premium or Make-Whole Amount, if any) and interest on
such Debt Securities, and any mandatory sinking fund or analogous
payments thereon, on the scheduled due dates therefor.
Such a trust may only be established if, among other things,
the Company has delivered to the applicable Trustee an Opinion of
Counsel (as specified in each Indenture) to the effect that the
Holders of such Debt Securities will not recognize income, gain
or loss for United States federal income tax purposes as a result
of such defeasance or covenant defeasance and will be subject to
United States federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
defeasance or covenant defeasance had not occurred, and such
Opinion of Counsel, in the case of defeasance, must refer to and
be based upon a ruling of the Internal Revenue Service or a
change in applicable United States federal income tax laws
occurring after the date of such Indenture (Section 1404 of each
Indenture).
"Government Obligations" means securities which are (i)
direct obligations of the United States of America or the
government which issued the Foreign Currency in which the Debt
Securities of a particular series are payable, for the payment of
which its full faith and credit is pledged or (ii) obligations of
a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America or the government
which issued the Foreign Currency in which the Debt Securities of
such series are payable, the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United
States of America or such other government, which, in either
case, are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a
bank or trust company as custodian with respect to any such
Government Obligation or a specific payment of interest on or
principal of any such Government Obligation held by such
custodian for the account of the holder of a depository receipt,
provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific
payment of interest on or principal of the Government Obligation
evidenced by such depository receipt (Section 101 of each
Indenture).
Unless otherwise provided in the applicable Prospectus
Supplement, if after the Company has deposited funds and/or
Government Obligations to effect defeasance or covenant
defeasance with respect to Debt Securities of any series, (a) the
Holder of a Debt Security of such series is entitled to, and
does, elect pursuant to Section 301 of either Indenture or the
terms of such Debt Security to receive payment in a currency,
currency unit or composite currency other than that in which such
deposit has been made in respect to such Debt Security, or (b) a
Conversion Event (as defined below) occurs in respect of the
currency, currency unit or composite currency in which such
deposit has been made, the indebtedness represented by such Debt
Security shall be deemed to have been, and will be, fully
discharged and satisfied through the payment of the principal of
(and premium or Make-Whole Amount, if any) and interest on such
Debt Security as they become due out of the proceeds yielded by
converting the amount so deposited in respect of such Debt
Security into the currency, currency unit or composite currency
in which such Debt Security becomes payable as a result of such
election or such cessation of usage based on the applicable
market exchange rate (Section 1405 of each Indenture).
"Conversion Event" means the cessation of use of (i) a
currency, currency unit or composite currency issued by the
government of one or more countries other than the United States
(other than the ECU or other currency unit) both by the
government of the country that issued such currency and for the
settlement of transactions by a central bank or other public
institutions of or within the international banking community,
(ii) the ECU both within the European Monetary System and for the
settlement of transactions by public institutions of or within
the European Communities or (iii) any currency, currency unit or
composite currency other than the ECU for the purposes for which
it was established (Section 101 of each Indenture). Unless
otherwise provided in the applicable Prospectus Supplement, all
payments of principal of (and premium or Make-Whole Amount, if
any) and interest on any Debt Security that is payable in a
Foreign Currency that ceases to be used by its government of
issuance shall be made in United States dollars.
In the event the Company effects covenant defeasance with
respect to any Debt Securities and such Debt Securities are
declared due and payable because of the occurrence of any Event
of Default other than the Event of Default described in clause
(d) under "Events of Default, Notice and Waiver" with respect to
Sections 1004 to 1009, inclusive, of either Indenture (which
Sections would no longer be applicable to such Debt Securities)
or described in clause (h) under "Events of Default, Notice and
Waiver" with respect to a covenant as to which there has been
covenant defeasance, the amount in such currency, currency unit
or composite currency in which such Debt Securities are payable,
and Government Obligations on deposit with the Trustee, will be
sufficient to pay amounts due on such Debt Securities at the time
of their Stated Maturity but may not be sufficient to pay amounts
due on such Debt Securities at the time of the acceleration
resulting from such Event of Default. However, the Company would
remain liable to make payment of such amounts due at the time of
acceleration.
The applicable Prospectus Supplement may further describe
the provisions, if any, permitting such defeasance or covenant
defeasance, including any modifications to the provisions
described above, with respect to the Debt Securities of or within
a particular series.
Conversion Rights
The terms and conditions, if any, upon which the Debt
Securities are convertible into Capital Stock will be set forth
in the applicable Prospectus Supplement relating thereto. Such
terms will include whether such Debt Securities are convertible
into Capital Stock, the conversion price (or manner of
calculation thereof), the conversion period, provisions as to
whether conversion will be at the option of the Holders or the
Company, the events requiring an adjustment of the conversion
price and provisions affecting conversion in the event of the
redemption of such Debt Securities.
Book-Entry System
The Debt Securities of a series may be issued in whole or in
part in the form of one or more global securities ("Global
Securities") that will be deposited with, or on behalf of, a
depository (the "Depository") identified in the Prospectus
Supplement relating to such series. Global Securities, if any,
issued in the United States are expected to be deposited with the
Depository Trust Company, as Depository. Global Securities may be
issued in fully registered form and may be issued in either
temporary or permanent form. Unless and until it is exchanged in
whole or in part for the individual Debt Securities represented
thereby, a Global Security may not be transferred except as a
whole by the Depository for such Global Security to a nominee of
such Depository or by a nominee of such Depository to such
Depository or another nominee of such Depository or by such
Depository or any nominee of such Depository to a successor
Depository or any nominee of such successor.
The specific terms of the depository arrangement with
respect to a series of Debt Securities will be described in the
Prospectus Supplement relating to such series. The Company
expects that unless otherwise indicated in the applicable
Prospectus Supplement, the following provisions will apply to
depository arrangements.
Upon the issuance of a Global Security, the Depository for
such Global Security or its nominee will credit on its book-entry
registration and transfer system the respective principal amounts
of the individual Debt Securities represented by such Global
Security to the accounts of persons that have accounts with such
Depository ("Participants"). Such accounts shall be designated by
the underwriters, dealers or agents with respect to such Debt
Securities or by the Company if such Debt Securities are offered
directly by the Company. Ownership of beneficial interests in
such Global Security will be limited to Participants or persons
that may hold interests through Participants. Ownership of
beneficial interests in such Global Security will be shown on,
and the transfer of that ownership will be effected only through,
records maintained by the Depository for such Global Security or
its nominee (with respect to beneficial interests of
Participants) and records of Participants (with respect to
beneficial interests of persons who hold through Participants).
The laws of some states require that certain purchasers of
securities take physical delivery of such securities in
definitive form. Such limits and laws may impair the ability to
own, pledge or transfer beneficial interest in a Global Security.
So long as the Depository for a Global Security or its
nominee is the registered owner of such Global Security, such
Depository or such nominee, as the case may be, will be
considered the sole owner or holder of the Debt Securities
represented by such Global Security for all purposes under the
applicable Indenture. Except as described below or in the
applicable Prospectus Supplement, owners of beneficial interest
in a Global Security will not be entitled to have any of the
individual Debt Securities represented by such Global Security
registered in their names, will not receive or be entitled to
receive physical delivery of any such Debt Securities in
definitive form and will not be considered the owners or holders
thereof under the applicable Indenture.
Payments of principal of, any premium or Make-Whole Amount
and any interest on, or any Additional Amounts payable with
respect to, individual Debt Securities represented by a Global
Security registered in the name of a Depository or its nominee
will be made to the Depository or its nominee, as the case may
be, as the registered owner of the Global Security. None of the
Company, the Trustee, any Paying Agent or the Security Registrar
for such Debt Securities will have any responsibility or
liability for any aspect of the records relating to or payments
made on account of beneficial ownership interests in the Global
Security for such Debt Securities or for maintaining, supervising
or reviewing any records relating to such beneficial ownership
interests.
The Company expects that the Depository for any Debt
Securities or its nominee, upon receipt of any payment of
principal, premium, Make-Whole Amount, interest or Additional
Amounts in respect of the Global Security representing such Debt
Securities, will immediately credit Participants' accounts with
payments in amounts proportionate to their respective beneficial
interests in the principal amount of such Global Security as
shown on the records of such Depository or its nominee. The
Company also expects that payments by Participants to owners of
beneficial interests in such Global Security held through such
Participants will be governed by standing instructions and
customary practices, as is the case with securities held for the
account of customers in bearer form or registered in street name.
Such payments will be the responsibility of such Participants.
If a Depository for any Debt Securities is at any time
unwilling, unable or ineligible to continue as depository and a
successor depository is not appointed by the Company within 90
days, the Company will issue individual Debt Securities in
exchange for the Global Security representing such Debt
Securities. In addition, the Company may at any time and in its
sole discretion, subject to any limitations described in the
Prospectus Supplement relating to such Debt Securities, determine
not to have any of such Debt Securities represented by one or
more Global Securities and in such event will issue individual
Debt Securities in exchange for the Global Security or Securities
representing such Debt Securities. Individual Debt Securities so
issued will be issued in denominations of $1,000 and integral
multiples thereof.
Trustees
First Union National Bank of Georgia, the Senior Indenture
Trustee and the Subordinate Indenture Trustee, also provides the
Company's revolving line of credit facility and from time to time
directly or through affiliates performs other services for the
Company in the normal course of business.
Governing Law
The Indentures are governed by and shall be construed in
accordance with the laws of the State of Georgia.
DESCRIPTION OF COMMON STOCK
This summary of certain terms and provisions of the
Company's Common Stock does not purport to be complete and is
subject to, and qualified in its entirety by reference to, the
terms and provisions of the Company's Amended and Restated
Articles of Incorporation (the "Articles"), and By-laws, as
amended, which are filed as exhibits to the Registration
Statement of which this Prospectus is a part.
The Company has 100,000,000 shares of Common Stock
authorized and 33,827,757 shares were outstanding at November 30,
1995. All outstanding shares of Common Stock are fully paid and
nonassessable.
The transfer agent and registrar for the Common Stock is
First Union National Bank of North Carolina, Charlotte, North
Carolina. The Company's Common Stock is traded on the New York
Stock Exchange under the symbol "MRY".
The holders of Common Stock are entitled to receive such
dividends as are declared by the Board of Directors, after
payment of, or provision for, full cumulative dividends for
outstanding Preferred Stock. Each share of Common Stock is
entitled to one vote on all matters submitted to a vote of
shareholders, including the election of directors. Cumulative
voting for directors is not permitted, which means that holders
of more than 50% of all of the shares of Common Stock voting can
elect all of the directors if they choose to do so, and, in such
event, the holders of the remaining shares of Common Stock will
not be able to elect any directors. Holders of Common Stock and
Preferred Stock, when outstanding and when entitled to vote, vote
as a class, except with respect to matters that relate only to
the rights, terms or conditions of the Preferred Stock, that
affect only the holders of the Preferred Stock, or that relate to
the rights of the holders of the Preferred Stock if the Company
fails to fulfill any of its obligations regarding the Preferred
Stock. Upon any dissolution, liquidation or winding-up of the
Company, the holders of Common Stock are entitled to receive pro
rata all of the Company's assets and funds remaining after
payment of, or provision for, creditors and distribution of, or
provision for, preferential amounts and unpaid accumulated
dividends to holders of Preferred Stock. Holders of Common Stock
have no preemptive right to purchase or subscribe for any shares
of capital stock of the Company.
DESCRIPTION OF PREFERRED STOCK
This summary of certain terms and provisions of the
Company's Preferred Stock does not purport to be complete and is
subject to, and qualified in its entirety by reference to, the
terms and provisions of the Company's Articles and By-laws, as
amended, which are filed as exhibits to the Registration
Statement of which this Prospectus is a part.
The Articles authorize the issuance of 20,000,000 shares of
Preferred Stock, without par value, of which 677,470 shares of
Series A Preferred Stock, 4,000,000 shares of Series B Preferred
Stock and 4,599,800 shares of Series C Preferred Stock were
issued and outstanding at November 30, 1995. All outstanding
shares of the Series A Preferred Stock, the Series B Preferred
Stock and the Series C Preferred Stock are fully paid and
nonassessable.
The transfer agent and registrar for the Series A Preferred
Stock, the Series B Preferred Stock and the Series C Preferred
Stock is First Union National Bank of North Carolina, Charlotte,
North Carolina.
The following description of the terms of the Preferred
Stock sets forth certain general terms and provisions of the
Preferred Stock to which a Prospectus Supplement may relate.
Specific terms of any series of Preferred Stock offered by a
Prospectus Supplement will be described in that Prospectus
Supplement. The description set forth below is subject to and
qualified in its entirety by reference to the Articles of
Amendment to the Articles fixing the preferences, limitations and
relative rights of a particular series of Preferred Stock.
General
Under the Articles, the Board of Directors of the Company is
authorized, without further shareholder action, to provide for
the issuance of up to 20,000,000 shares of Preferred Stock, in
one or more series, with such voting powers and with such
designations, preferences and relative, participating, optional
or other special rights, and qualifications, limitations or
restrictions, as the Board of Directors shall approve. At
November 30, 1995 the Company had 9,277,270 shares of Preferred
Stock issued and outstanding of its 20,000,000 authorized shares
of Preferred Stock.
The Preferred Stock will have the dividend, liquidation,
redemption, conversion and voting rights set forth below unless
otherwise provided in the Prospectus Supplement relating to a
particular series of Preferred Stock. Reference is made to the
Prospectus Supplement relating to the particular series of
Preferred Stock offered thereby for specific terms, including:
(i) the title and liquidation preference per share of such
Preferred Stock and the number of shares offered; (ii) the price
at which such series of Preferred Stock will be issued; (iii) the
dividend rate (or method of calculation), the dates on which
dividends shall be payable and the dates from which dividends
shall commence to accumulate; (iv) any redemption or sinking fund
provisions of such series of Preferred Stock; (v) any conversion
provisions of such series of Preferred Stock; and (vi) any
additional dividend, liquidation, redemption, sinking fund and
other rights, preferences, privileges, limitations and
restrictions of such series of Preferred Stock.
The Preferred Stock will, when issued, be fully paid and
nonassessable. Unless otherwise specified in the Prospectus
Supplement relating to a particular series of Preferred Stock,
each series will rank on a parity as to dividends and
distributions in the event of a liquidation with each other
series of Preferred Stock and, in all cases, will be senior to
the Common Stock.
Dividend Rights
Holders of Preferred Stock of each series will be entitled
to receive, when as and if declared by the Board of Directors,
out of assets of the Company legally available therefor, cash
dividends at such rates and on such dates as are set forth in the
Prospectus Supplement relating to such series of Preferred Stock.
Such rate may be fixed or variable or both and may be cumulative,
noncumulative or partially cumulative.
If the applicable Prospectus Supplement so provides, as long
as any shares of Preferred Stock are outstanding, no dividends
will be declared or paid or any distributions be made on the
Common Stock, other than a dividend payable in Common Stock,
unless the accrued dividends on each series of Preferred Stock
have been fully paid or declared and set apart for payment and
the Company shall have set apart all amounts, if any, required to
be set apart for all sinking funds, if any, for each series of
Preferred Stock.
If the applicable Prospectus Supplement so provides, when
dividends are not paid in full upon any series of Preferred Stock
and any other series of Preferred Stock ranking on a parity as to
dividends with such series of Preferred Stock, all dividends
declared upon such series of Preferred Stock and any other series
of Preferred Stock ranking on a parity as to dividends will be
declared pro rata so that the amount of dividends declared per
share on such series of Preferred Stock and such other series
will in all cases bear to each other the same ratio that accrued
dividends per share on such series of Preferred Stock and such
other series bear to each other.
Each series of Preferred Stock will be entitled to dividends
as described in the Prospectus Supplement relating to such
series, which may be based upon one or more methods of
determination. Different series of Preferred Stock may be
entitled to dividends at different dividend rates or based upon
different methods of determination. Except as provided in the
applicable Prospectus Supplement, no series of Preferred Stock
will be entitled to participate in the earnings or assets of the
Company.
Rights Upon Liquidation
In the event of any voluntary or involuntary liquidation,
dissolution or winding-up of the Company, the holders of each
series of Preferred Stock will be entitled to receive out of the
assets of the Company available for distribution to shareholders,
the amount stated or determined on the basis set forth in the
Prospectus Supplement relating to such series, which may include
accrued dividends, if such liquidation, dissolution or winding-up
is involuntary or may equal the current redemption price per
share (otherwise than for the sinking fund, if any, provided for
such series) provided for such series set forth in such
Prospectus Supplement, if such liquidation, dissolution or
winding-up is voluntary, and on such preferential basis as is set
forth in such Prospectus Supplement. If, upon any voluntary or
involuntary liquidation, dissolution or winding-up of the
Company, the amounts payable with respect to Preferred Stock of
any series and any other shares of stock of the Company ranking
as to any such distribution on a parity with such series of
Preferred Stock are not paid in full, the holders of Preferred
Stock of such series and of such other shares will share ratably
in any such distribution of assets of the Company in proportion
to the full respective preferential amounts to which they are
entitled or on such other basis as is set forth in the applicable
Prospectus Supplement. The rights, if any, of the holders of any
series of Preferred Stock to participate in the assets of the
Company remaining after the holders of other series of Preferred
Stock have been paid their respective specified liquidation
preferences upon any liquidation, dissolution or winding-up of
the Company will be described in the Prospectus Supplement
relating to such series.
Redemption
A series of Preferred Stock may be redeemable, in whole or
in part, at the option of the Company, and may be subject to
mandatory redemption pursuant to a sinking fund, in each case
upon terms, at the times and the redemption prices and for the
types of consideration set forth in the Prospectus Supplement
relating to such series. The Prospectus Supplement relating to a
series of Preferred Stock which is subject to mandatory
redemption shall specify the number of shares of such series that
shall be redeemed by the Company in each year commencing after a
date to be specified, at a redemption price per share to be
specified, together with an amount equal to any accrued and
unpaid dividends thereon to the date of redemption. Except as
indicated in the applicable Prospectus Supplement, the Preferred
Stock is not subject to any mandatory redemption at the option of
the holder.
Sinking Fund
The Prospectus Supplement for any series of Preferred Stock
will state the terms, if any, of a sinking fund for the purchase
or redemption of that series.
Conversion Rights
The Prospectus Supplement for any series of Preferred Stock
will state the terms, if any, on which shares of that series are
convertible into shares of Common Stock or another series of
Preferred Stock. The Preferred Stock will have no preemptive
rights.
Voting Rights
Except as indicated in the Prospectus Supplement relating to
a particular series of Preferred Stock, or except as expressly
required by Georgia law, a holder of Preferred Stock will not be
entitled to vote. Except as indicated in the Prospectus
Supplement relating to a particular series of Preferred Stock, in
the event the Company issues full shares of any series of
Preferred Stock, each such share will be entitled to one vote on
matters on which holders of such series of Preferred Stock are
entitled to vote.
Transfer Agent and Registrar
The transfer agent, registrar and dividend disbursement
agent for a series of Preferred Stock will be selected by the
Company and be described in the applicable Prospectus Supplement.
The registrar for shares of Preferred Stock will send notices to
shareholders of any meetings at which holders of Preferred Stock
have the right to vote on any matter.
Outstanding Preferred Stock
Series A Preferred Stock. The Series A Preferred Stock
ranks senior to the Common Stock, and pari passu with the Series
B Preferred Stock and Series C Preferred Stock, with respect to
payment of dividends and amounts upon liquidation, dissolution or
winding-up. Holders of Series A Preferred Stock are entitled to
receive, when, as and if declared by the Board of Directors of
the Company, out of funds legally available for payment,
cumulative cash dividends at the rate per annum of $1.75 per
share of Series A Preferred Stock. Dividends on the Series A
Preferred Stock are payable quarterly in arrears on the last
calendar day of March, June, September and December of each year.
Shares of Series A Preferred Stock are not redeemable by the
Company prior to June 30, 1998, and at no time are the shares of
Series A Preferred Stock redeemable for cash. On and after June
30, 1998, the shares of Series A Preferred Stock are redeemable
at the option of the Company, in whole or in part, for such
number of shares of Common Stock as equals the liquidation
preference of the Series A Preferred Stock to be redeemed divided
by the applicable conversion price as of the opening of business
on the date set for such redemption, subject to adjustment in
certain circumstances. The Company may exercise this option only
if for 20 trading days, within any period of 30 consecutive
trading days, including the last trading day of such period, the
closing price of the Common Stock on the New York Stock Exchange
equals or exceeds the conversion price per share, subject to
adjustments in certain circumstances.
The holders of Series A Preferred Stock are entitled to
receive in the event of any liquidation, dissolution or winding-up
of the Company, whether voluntary or involuntary, $25.00 per
share of Series A Preferred Stock plus an amount per share of
Series A Preferred Stock equal to all dividends (whether or not
earned or declared) accrued and unpaid thereon to the date of
final distribution to such holders, and no more. Except under
certain circumstances or except as otherwise from time to time
required by applicable law, the holders of Series A Preferred
Stock have no voting rights.
Series B Preferred Stock. The Series B Preferred Stock
ranks senior to the Common Stock, and pari passu with the Series
A Preferred Stock and the Series C Preferred Stock, with respect
to payment of dividends and amounts upon liquidation, dissolution
or winding-up. Holders of Series B Preferred Stock are entitled
to receive, when, as and if declared by the Board of Directors of
the Company, out of funds legally available for payment,
cumulative cash dividends at the rate per annum of $2.205 per
share of Series B Preferred Stock. Dividends on the Series B
Preferred Stock are payable quarterly in arrears on the last
calendar day of March, June, September and December of each year.
Shares of Series B Preferred Stock are not redeemable by the
Company prior to October 31, 1999, and at no time are the shares
of Series B Preferred Stock redeemable for cash. On and after
October 31, 1999, the shares of Series B Preferred Stock are
redeemable at the option of the Company, in whole or in part, for
such number of shares of Common Stock as equals the liquidation
preference of the Series B Preferred Stock to be redeemed divided
by the applicable conversion price as of the opening of business
on the date set for such redemption, subject to adjustment in
certain circumstances. The Company may exercise this option only
if for 20 trading days, within any period of 30 consecutive
trading days, including the last trading day of such period, the
closing price of the Common Stock on the New York Stock Exchange
equals or exceeds the conversion price per share, subject to
adjustments in certain circumstances.
The holders of Series B Preferred Stock are entitled to
receive in the event of any liquidation, dissolution or winding-up
of the Company, whether voluntary or involuntary, $25.00 per
share of Series B Preferred Stock plus an amount per share of
Series B Preferred Stock equal to all dividends (whether or not
earned or declared) accrued and unpaid thereon to the date of
final distribution to such holders, and no more. Except under
certain circumstances or except as otherwise from time to time
required by applicable law, the holders of Series B Preferred
Stock have no voting rights.
Series C Preferred Stock. The Series C Preferred Stock
ranks senior to the Common Stock, and pari passu with the Series
A Preferred Stock and the Series B Preferred Stock, with respect
to payment of dividends and amounts upon liquidation, dissolution
or winding-up. Holders of Series C Preferred Stock are entitled
to receive, when, as and if declared by the Board of Directors of
the Company, out of funds legally available for payment,
cumulative cash dividends at the rate per annum of $2.15 per
share of Series C Preferred Stock. Dividends on the Series C
Preferred Stock are payable quarterly in arrears on the last
calendar day of March, June, September and December of each year.
Shares of Series C Preferred Stock are not redeemable by the
Company prior to March 31, 2000, and at no time are the shares of
Series C Preferred Stock redeemable for cash. On and after March
31, 2000, the shares of Series C Preferred Stock are redeemable
at the option of the Company, in whole or in part, for such
number of shares of Common Stock as equals the liquidation
preference of the Series C Preferred Stock to be redeemed divided
by the applicable conversion price as of the opening of business
on the date set for such redemption, subject to adjustment in
certain circumstances. The Company may exercise this option only
if for 20 trading days, within any period of 30 consecutive
trading days, including the last trading day of such period, the
closing price of the Common Stock on the New York Stock Exchange
equals or exceeds the conversion price per share, subject to
adjustments in certain circumstances.
The holders of Series C Preferred Stock are entitled to
receive in the event of any liquidation, dissolution or winding-up
of the Company, whether voluntary or involuntary, $25.00 per
share of Series C Preferred Stock plus an amount per share of
Series C Preferred Stock equal to all dividends (whether or not
earned or declared) accrued and unpaid thereon to the date of
final distribution to such holders, and no more. Except under
certain circumstances or except as otherwise from time to time
required by applicable law, the holders of Series C Preferred
Stock have no voting rights.
DESCRIPTION OF COMMON STOCK WARRANTS
The Company may issue Common Stock Warrants for the purchase
of Common Stock. Common Stock Warrants may be issued
independently or together with any other Offered Securities
offered by any Prospectus Supplement and may be attached to or
separate from such Offered Securities. Each series of Common
Stock Warrants will be issued under a separate warrant agreement
(each, a "Warrant Agreement") to be entered into between the
Company and a warrant agent specified in the applicable
Prospectus Supplement (the "Warrant Agent"). The Warrant Agent
will act solely as an agent of the Company in connection with the
Common Stock Warrants of such series and will not assume any
obligation or relationship of agency or trust for or with any
holders or beneficial owners of Common Stock Warrants. The
following sets forth certain general terms and provisions of the
Common Stock Warrants offered hereby. Further terms of the
Common Stock Warrants and the applicable Warrant Agreements will
be set forth in the applicable Prospectus Supplement.
The applicable Prospectus Supplement will describe the terms
of the Common Stock Warrants in respect of which this Prospectus
is being delivered, including, where applicable, the following:
(1) the title of such Common Stock Warrants; (2) the aggregate
number of such Common Stock Warrants: (3) the price or prices at
which such Common Stock Warrants will be issued; (4) the
designation, number and terms of the shares of Common Stock
purchasable upon exercise of such Common Stock Warrants; (5) the
designation and terms of the other Offered Securities with which
such Common Stock Warrants are issued and the number of such
Common Stock Warrants issued with each such Offered Security; (6)
the date, if any, on and after which such Common Stock Warrants
and the related Common Stock will be separately transferable; (7)
the price at which each share of Common Stock purchasable upon
exercise of such Common Stock Warrants may be purchased; (8) the
date on which the right to exercise such Common Stock Warrants
shall commence and the date on which such right shall expire; (9)
the minimum or maximum amount of such Common Stock Warrants which
may be exercised at any one time; (10) information with respect
to book-entry procedures, if any; (11) a discussion of certain
federal income tax considerations; and (12) any other terms of
such Common Stock Warrants, including terms, procedures and
limitations relating to the exchange and exercise of such Common
Stock Warrants.
DESCRIPTION OF DEPOSITARY SHARES
The Company may, at its option, elect to offer receipts for
fractional interests ("Depositary Shares") in Preferred Stock. In
such event, receipts ("Depositary Receipts") for Depositary
Shares, each of which will represent a fraction (to be set forth
in the Prospectus Supplement relating to a particular series of
Preferred Stock) of a share of a particular series of Preferred
Stock, will be issued as described below.
The shares of any series of Preferred Stock represented by
Depositary Shares will be deposited under a Deposit Agreement
(the "Deposit Agreement") between the Company and the depositary
named in the Prospectus Supplement relating to such shares (the
"Preferred Stock Depositary"). 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 represented by such Depositary Share, to all the
rights and preferences of the Preferred Stock represented thereby
(including dividend, voting, redemption, subscription and
liquidation rights). The following summary of certain provisions
of the Deposit Agreement does not purport to be complete and is
subject to, and is qualified in its entirety by reference to, all
the provisions of the Deposit Agreement, including the
definitions therein of certain terms. Whenever particular
sections of the Deposit Agreement are referred to, it is intended
that such sections shall be incorporated herein by reference. The
form of Deposit Agreement is filed as an exhibit to the
Registration Statement of which this Prospectus is a part, and
the following summary is qualified in its entirety by reference
to such exhibit.
The Preferred Stock Depositary will distribute all cash
dividends or other cash distributions received in respect of the
Preferred Stock to the record holders of Depositary Shares
relating to such Preferred Stock in proportion to the numbers of
such Depositary Shares owned by such holders. (Deposit Agreement,
Section 4.01)
In the event of a distribution other than in cash, the
Preferred Stock Depositary will distribute property received by
it to the record holders of Depositary Shares in an equitable
manner, unless the Preferred Stock Depositary determines that it
is not feasible to make such distribution, in which case the
Preferred Stock Depositary may sell such property and distribute
the net proceeds from such sale to such holders. (Deposit
Agreement, Section 4.02)
Upon surrender of the Depositary Receipts at the corporate
trust office of the Preferred Stock Depositary and upon payment
of the taxes, charges and fees provided for in the Deposit
Agreement and subject to the terms thereof, the holder of the
Depositary Shares evidenced thereby is entitled to delivery at
such office, to or upon his or her order, of the number of whole
shares of the related series of Preferred Stock and any money or
other property, if any, represented by such 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 Preferred Stock
Depositary resulting from the redemption, in whole or in part, of
such series of Preferred Stock held by the Preferred Stock
Depositary. The redemption price per Depositary Share will be
equal to the applicable fraction of the redemption price per
share payable with respect to such series of the Preferred Stock.
Whenever the Company redeems shares of Preferred Stock held by
the Preferred Stock Depositary, the Preferred Stock Depositary
will redeem as of the same redemption date the number of
Depositary Shares representing shares of Preferred Stock so
redeemed. If fewer than all the Depositary Shares are to be
redeemed, the Depositary Shares to be redeemed will be selected
by lot, pro rata or by any other equitable method as may be
determined by the Preferred Stock Depositary. (Deposit Agreement,
Section 2.08)
Upon receipt of notice of any meeting at which the holders
of the Preferred Stock are entitled to vote, the Preferred Stock
Depositary will mail the information contained in such notice of
meeting to the record holders of the Depositary Shares relating
to such Preferred Stock. Each record holder of such 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 Preferred Stock Depositary as to the exercise of the voting
rights pertaining to the amount of the Preferred Stock
represented by such holder's Depositary Shares. The Preferred
Stock Depositary will endeavor, insofar as practicable, to vote
the amount of the Preferred Stock represented by such Depositary
Shares in accordance with such instructions, and the Company will
agree to take all reasonable action which may be deemed necessary
by the Preferred Stock Depositary in order to enable the
Preferred Stock Depositary to do so. The Preferred Stock
Depositary will abstain from voting shares of the Preferred Stock
to the extent it does not receive specific instructions from the
holder of Depositary Shares representing such Preferred Stock.
(Deposit Agreement, Section 4.05)
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 the Company and the Preferred
Stock Depositary. However, any amendment which materially and
adversely alters the rights of the holders of Depositary Shares
will not be effective unless such amendment has been approved by
the holders of at least a majority of the Depositary Shares then
outstanding. (Deposit Agreement, Section 6.01) The Deposit
Agreement will only terminate if (i) all outstanding Depositary
Shares have been redeemed or (ii) there has been a final
distribution in respect of the Preferred Stock in connection with
any liquidation, dissolution or winding-up of the Company and
such distribution has been distributed to the holders of
Depositary Receipts. (Deposit Agreement, Section 6.02)
The Company will pay all transfer and other taxes and
governmental charges arising solely from the existence of the
depositary arrangements. The Company will pay charges of the
Preferred Stock Depositary in connection with the initial deposit
of the Preferred Stock and issuance of Depositary Receipts, all
withdrawals of shares of Preferred Stock by owners of Depositary
Shares and any redemption of the Preferred Stock. Holders of
Depositary Receipts will pay other transfer and other taxes and
governmental charges and such other charges as are expressly
provided in the Deposit Agreement to be for their accounts.
(Deposit Agreement, Section 5.07)
The Preferred Stock Depositary may resign at any time by
delivering to the Company notice of its election to do so, and
the Company may at any time remove the Preferred Stock
Depositary, any such resignation or removal to take effect upon
the appointment of a successor Preferred Stock Depositary and its
acceptance of such appointment. Such successor Preferred Stock
Depositary must be appointed within 60 days after delivery of the
notice of resignation or removal and must be a bank or trust
company having its principal office in the United States and
having a combined capital and surplus of at least $50,000,000.
(Deposit Agreement, Section 5.04)
The Preferred Stock Depositary will forward to the holders
of the Preferred Stock all reports and communications from the
Company which are delivered to the Preferred Stock Depositary and
which the Company is required or otherwise determines to furnish
to such holders. (Deposit Agreement, Section 4.07)
Neither the Preferred Stock Depositary nor the Company will
be liable under the Deposit Agreement to holders of Depositary
Receipts other than for its negligence, willful misconduct or bad
faith. Neither the Company nor the Preferred Stock Depositary
will be obligated to prosecute or defend any legal proceeding in
respect of any Depositary Shares or Preferred Stock unless
satisfactory indemnity is furnished. The Company and the
Preferred Stock 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. (Deposit Agreement, Section
5.03)
PLAN OF DISTRIBUTION
The Company may sell the Offered Securities to or through
underwriters or may sell the Offered Securities to investors
directly or through designated agents. Any such underwriter or
agent involved in the offer and sale of the Offered Securities
will be named in the applicable Prospectus Supplement.
Underwriters may offer and sell the Offered Securities at a
fixed price or prices, which may be changed, or from time to time
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 underwriters
acting as agents to offer and sell the Offered Securities upon
the terms and conditions set forth in any Prospectus Supplement.
In connection with the sale of Offered Securities, underwriters
may be deemed to have received compensation from the Company in
the form of underwriting discounts or commissions and may also
receive commissions from purchasers of Offered Securities for
whom they may act as agent. Underwriters may sell Offered
Securities to or through dealers, and such dealers may receive
compensation in the form of discounts, concessions or commissions
(which may be changed from time to time) from the underwriters
and from the purchasers for whom they may act as agent.
Any underwriting compensation paid by the Company to
underwriters or agents in connection with the offering of Offered
Securities and any discounts, concessions or commissions allowed
by underwriters to participating dealers will be set forth in the
applicable Prospectus Supplement. Underwriters, dealers and
agents participating in the distribution of the Offered
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 Offered Securities may be deemed to be
underwriting discounts and commissions, under the Securities Act.
Underwriters, dealers and agents may be entitled, under
agreements entered into with the Company, to indemnification
against and contribution toward certain civil liabilities,
including liabilities under the Securities Act.
If so indicated in the applicable Prospectus Supplement, the
Company will authorize dealers acting as the Company's agents to
solicit offers by certain institutions to purchase Offered
Securities from the Company at the public offering price set
forth in such Prospectus Supplement pursuant to Delayed Delivery
Contracts ("Contracts") providing for payment and delivery on the
date or dates stated in such Prospectus Supplement. Each
Contract will be for an amount not less than, and the principal
amount of Offered Securities sold pursuant to Contracts shall not
be less nor more than, the respective amounts stated in such
Prospectus Supplement. Institutions with which Contracts, when
authorized, may be made include commercial and savings banks,
insurance companies, pension funds, investment companies,
educational and charitable institutions and other institutions,
but will in all cases be subject to the approval of the Company.
Contracts will not be subject to any conditions except (i) the
purchase by an institution of the Offered Securities covered by
its Contract shall not at the time of delivery be prohibited
under the laws of any jurisdiction in the United States to which
such institution is subject and (ii) the Company shall have sold
to such underwriters the total principal amount of the Offered
Securities less the principal amount thereof covered by
Contracts. A commission indicated in the Prospectus Supplement
will be paid to agents and underwriters soliciting purchases of
Offered Securities pursuant to Contracts accepted by the Company.
Agents and underwriters shall have no responsibility in respect
of the delivery or performance of Contracts.
Certain of the underwriters and their affiliates may be
customers of, engage in transactions with, and perform services
for, the Company in the ordinary course of business.
EXPERTS
The audited financial statements and schedules of the
Company incorporated by reference in this Prospectus and
elsewhere in the registration statement of which this Prospectus
is a part, have been audited by Arthur Andersen LLP, independent
public accountants, as indicated in their reports with respect
thereto, and are incorporated herein in reliance upon the
authority of said firm as experts in giving said reports.
LEGAL OPINIONS
Certain legal opinions relating to tax matters and the
Offered Securities will be passed upon for the Company by Hull,
Towill, Norman & Barrett, P.C., Augusta, Georgia. Certain legal
matters relating to the validity of the Offered Securities will
be passed upon for the Underwriters by Piper & Marbury L.L.P.,
Baltimore, Maryland. W. Hale Barrett, a member of the firm of
Hull, Towill, Norman & Barrett, P.C., is a director and secretary
of the Company. He and members of his firm own 26,141 shares of
the Company's Common Stock.
