As filed with the Securities and Exchange Commission on June 22, 1995
Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
______________
MAGMA COPPER COMPANY
(Exact name of registrant as specified in its charter)
Delaware 86-0219794
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) I.D. number)
7400 North Oracle Road
Suite 200
Tucson, Arizona 85704
(520) 575-5600
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
Douglas J. Purdom
Chief Financial Officer
Magma Copper Company
7400 North Oracle Road
Suite 200
Tucson, Arizona 85704
(520) 575-5600
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
_________________________
The Commission is requested to send copies of all communications to:
Steven D. Pidgeon Alison S. Ressler
Snell & Wilmer L.L.P. Sullivan & Cromwell
One Arizona Center 444 South Flower Street
Phoenix, Arizona 85004-0001 Los Angeles, CA 90071
(602) 382-6252 (213) 955-8022
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement.
______________________
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
_____________________
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection
with dividend or interest reinvestment plans, please check the following
box. [X]
_____________________
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [X]
CALCULATION OF REGISTRATION FEE
===========================================================================
Proposed
Title of each class of maximum
securities to be aggregate Amount of
registered offering registration
price fee
- ---------------------------------------------------------------------------
Preferred Stock (par value
$.01 per share) . . . . (1)(2) N/A
Depositary Shares . . . . (1)(3) N/A
Preferred Stock Warrants (1)(4) N/A
Common Stock (par value
$.01 per share) . . . . (1)(5) N/A
Common Stock Warrants . . (1)(4) N/A
Debt Securities . . . . . (1)(6) N/A
Debt Warrants . . . . . . (1)(4) N/A
Total . . . . . . . $200,000,000 $68,966(7)
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(1) In no event will the aggregate initial offering price of all securities
issued from time to time pursuant to this Registration Statement exceed
$200,000,000 or the equivalent thereof in one or more foreign
currencies or composite currencies, including the European Currency
Unit. If any such Debt Securities are issued at an original issue
discount, then the offering price shall be in such greater principal
amount as shall result in an aggregate initial offering price of up to
$200,000,000. Any securities registered hereunder may be sold
separately or as units with other securities registered hereunder.
(2) Subject to Footnote (1), there are being registered hereunder an
indeterminate number of shares of Preferred Stock as may be sold, from
time to time, by the Registrant. There are also being registered
hereunder an indeterminate number of shares of Preferred Stock and
Depositary Shares (including common stock purchase rights and preferred
stock purchase rights, if any, appurtenant to either of the foregoing)
as shall be issuable upon conversion of Debt Securities registered
hereby.
(3) Subject to Footnote (1), there are being registered hereunder an
indeterminate number of Depositary Shares to be evidenced by Depositary
Receipts issued pursuant to a Deposit Agreement. In the event the
Registrant elects to offer to the public fractional interests in shares
of the Preferred Stock registered hereunder, Depositary Receipts will
be distributed to those persons purchasing such fractional interests,
and the shares of Preferred Stock will be issued to the Depositary
under the Deposit Agreement.
(4) Subject to Footnote (1), there are being registered hereunder an
indeterminate number of Preferred Stock Warrants, Common Stock Warrants
and Debt Warrants representing rights to purchase Preferred Stock,
Common Stock and Debt Securities, respectively, registered pursuant to
this Registration Statement.
(5) Subject to Footnote (1), there are being registered hereunder an
indeterminate number of shares of Common Stock as may be sold, from
time to time, by the Registrant (including common stock purchase rights
and preferred stock purchase rights, if any, appurtenant thereto).
There are also being registered hereunder an indeterminate number of
shares of Common Stock (including common stock purchase rights and
preferred stock purchase rights, if any, appurtenant thereto) as shall
be issuable upon conversion of the Preferred Stock or Debt Securities
registered hereby.
(6) Subject to Footnote (1), there are being registered hereunder an
indeterminate principal amount of Debt Securities as may be sold from
time to time, by the Registrant.
(7) Calculated pursuant to Rule 457(o) of the rules and regulations under
the Securities Act of 1933, as amended (the "Securities Act").
Pursuant to Rule 429 under the Securities Act of 1933, this
Registration Statement contains a combined prospectus relating to the
$200,000,000 principal amount of securities registered hereby and
$300,000,000 principal amount of securities registered on April 21, 1994
pursuant to Registration No. 33-53021, of which $100,000,000 remains
available for issuance thereunder. A filing fee of $103,448.28 was paid in
connection with Registration Statement No. 33-53021 of which $34,482.76 was
attributable to the $100,000,000 in securities that remain subject to such
Registration Statement.
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that
this Registration Statement shall thereafter become effective in accordance
with Section 8(a) of the Securities Act or until this Registration Statement
shall become effective on such date as the Commission, acting pursuant to
said Section 8(a), may determine.
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF
ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED JUNE 22, 1995
MAGMA COPPER COMPANY
Debt Securities
Preferred Stock
Common Stock
Warrants
_______________
Magma Copper Company ("Magma" or the "Company") may offer from time to
time (i) Debt Securities ("Debt Securities"), consisting of debentures,
notes and/or other unsecured evidences of indebtedness in one or more
series, which may be senior ("Senior Debt Securities"), senior subordinated
("Senior Subordinated Debt Securities") or subordinated ("Subordinated Debt
Securities"), (ii) shares of Preferred Stock, $.01 par value per share
("Preferred Stock") in one or more series, (iii) shares of Common Stock,
$.01 par value per share ("Common Stock"), or (iv) Warrants ("Warrants") to
purchase Debt Securities, Preferred Stock or Common Stock (Debt Securities,
Preferred Stock, Common Stock and Warrants are collectively referred to as
the "Securities"), at an aggregate initial offering price not to exceed U.S.
$300,000,000, at prices and on terms to be determined at the time of sale.
The accompanying Prospectus Supplement sets forth with regard to the
particular Securities in respect of which this Prospectus is being delivered
(i) in the case of Debt Securities, the title, aggregate principal amount,
denominations (which may be in United States dollars, or in any other
currency, currencies or currency unit, including the European Currency
Unit), maturity, rate of interest, if any (which may be fixed or variable),
or method of calculation thereof, time of payment of any interest, any terms
for redemption at the option of the Company or the holder, any terms for
sinking fund payments, subordination terms, if any, any conversion or
exchange rights, any listing on a securities exchange, the initial
public offering price and any other terms in connection with the offering
and sale of such Debt Securities, (ii) in the case of Preferred Stock, the
designation, number of shares, stated value and liquidation preference per
share, initial public offering price, dividend rate (or method of
calculation thereof), dates on which dividends shall be payable and dates
from which dividends shall accrue, any redemption or sinking fund
provisions, any conversion or exchange rights, whether the Company has
elected to offer the Preferred Stock in the form of depositary shares, any
listing of the Preferred Stock on a securities exchange and any other terms
in connection with the offering and sale of such Preferred Stock, (iii) in
the case of Common Stock, the number of shares of Common Stock, the initial
public offering price and the terms of the offering thereof, and (iv) in the
case of Warrants, the number and terms thereof, the designation and the
number of Securities issuable upon their exercise, the exercise price, any
listing of the Warrants or the underlying Securities on a securities
exchange, the initial public offering price and any other terms in
connection with the offering, sale and exercise of the Warrants. The
Prospectus Supplement will also contain information, as applicable, about
certain United States Federal income tax considerations relating to the
Securities in respect of which this Prospectus is being delivered.
The Company's Common Stock is listed on the New York Stock Exchange
(Symbol: "MCU"). Any Common Stock offered will be listed, subject to
notice of issuance, on such exchange.
The Company may sell Securities to or through underwriters acting as
principals for their own account or as agents, and also may sell Securities
directly to other purchasers or through agents designated from time to time.
The accompanying Prospectus Supplement sets forth the names of any
underwriters or agents involved in the sale of the Securities in respect of
which this Prospectus is being delivered, the amounts of Securities, if any,
to be purchased by underwriters and the compensation, if any, of such
underwriters or agents. See "Plan of Distribution" herein.
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 date of this Prospectus is , 1995.
AVAILABLE INFORMATION
Magma is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). The reports, proxy
statements and other information filed by Magma with the Commission can be
inspected and copied at the Commission at Room 1024, Judiciary Plaza, 450
Fifth Street, N.W., Washington, D.C. 20549, and at the following regional
offices of the Commission: 7 World Trade Center, 13th Floor, New York, New
York 10007 and Northwestern Atrium Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661-2511. Copies of such information can be
obtained from the Public Reference Section of the Commission, 450 Fifth
Street, N.W., Washington, D.C. 20549, at prescribed rates. Magma's Common
Stock, par value $.01 per share, 5-5/8% Cumulative Convertible Preferred
Stock, Series D, par value $.01 per share, 6% Cumulative Convertible
Preferred Stock, Series E, par value $.01 per share, and Common Stock
purchase warrants, $8.50 exercise price, are listed on the New York Stock
Exchange ("NYSE") and similar information can be inspected and copied at the
NYSE, 20 Broad Street, 17th Floor, New York, New York 10005.
This Prospectus constitutes a part of two registration statements on
Form S-3 (the "Registration Statements") filed by the Company with the
Commission under the Securities Act of 1933, as amended (the "Securities
Act"). As permitted by the rules and regulations of the Commission, this
Prospectus omits certain of the information contained in the Registration
Statements and reference is hereby made to the Registration Statements and
related exhibits for further information with respect to the Company and the
Securities offered hereby. Statements contained herein concerning the
provisions of any documents filed as an exhibit to the Registration
Statements or otherwise filed with the Commission are not necessarily
complete, and in each instance reference is made to the copy of such
document so filed. Each such statement is qualified in its entirety by such
reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents have been filed by Magma with the Commission
and are hereby incorporated by reference into this Prospectus: (i) Annual
Report on Form 10-K for the fiscal year ended December 31, 1994, (ii)
Quarterly Report on Form 10-Q for the period ended March 31, 1995, (iii)
Notice and Proxy Statement dated April 7, 1995 for Annual Meeting of
Stockholders, (iv) Current Report on Form 8-K dated May 24, 1995, and (v)
the description of the Common Stock contained in the Company's Form 8-A
filed on October 22, 1992. All other documents and reports filed pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act from the date of this
Prospectus and prior to the termination of the offering of the Securities
shall be deemed to be incorporated by reference herein and shall be deemed
to be a part hereof from the date of the filing of such reports and
documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this
Prospectus.
The Company will provide without charge to each person to whom a copy
of this Prospectus is delivered, on written or oral request of such person,
a copy of any or all documents which are incorporated herein by reference
(not including the exhibits to such documents, unless such exhibits are
specifically incorporated by reference in the document which this Prospectus
incorporates). Requests should be directed to Mr. Richard Johnson,
Assistant Treasurer, at the Company's principal executive offices located at
7400 North Oracle Road, Suite 200, Tucson, Arizona 85704, telephone number
(520) 575-5600.
THE COMPANY
Magma is a fully integrated producer of electrolytic copper and ranks
among the largest U.S. copper producers. Magma's principal products are
high quality copper cathode and high quality copper rod, the latter of which
is the basic feedstock of the copper wire and cable industry.
The Company owns and operates underground copper mines at its San
Manuel and Superior Mining Divisions, an open-pit copper mine at its Pinto
Valley Mining Division, and in situ leaching operations at its San Manuel
and Pinto Valley Mining Divisions, all of which are located in southeastern
Arizona. Recently, the Company began development of its Robinson mine
located near Ely, Nevada. Production at this mine is expected to commence in
the first quarter of 1996. In the fourth quarter of 1994, the Company
completed the acquisition of a company which owns one of the largest
operating mines in Southern Peru ("Tintaya"). Tintaya operates an open-pit
mine and is engaged in a variety of development projects at this property.
The Company operates the largest and most modern copper smelting and
refining complex in the United States. The Company's smelter, which was
expanded in 1994, has a rated production capacity of 720 million pounds of
copper anode per year, representing approximately 25% of U.S. copper
smelting capacity. In addition to smelting and refining its own copper
concentrate production, the Company smelts and refines a substantial amount
of copper concentrates on a custom basis for, or purchased from, third
parties, the profits from which effectively reduce the Company's overall
break-even cost of producing copper from its mines.
INVESTMENT CONSIDERATIONS
Copper Price Volatility. The profitability of the Company's operations
is largely dependent upon the worldwide market price for copper. A one cent
per pound change in the average price received for the Company's 1994 output
would have affected earnings before interest, taxes, depreciation and
amortization by an estimated $6.0 million. Copper prices have historically
been subject to wide fluctuations and are affected by numerous factors
beyond the control of the Company, including international economic and
political conditions, levels of supply and demand, the availability and cost
of copper substitutes, inventory levels maintained by copper producers and
others and, to a lesser degree, inventory carrying costs (primarily interest
charges) and international exchange rates. From time to time the Company
engages in hedging activities in an effort to stabilize the Company's cash
flow in the event of declining copper prices. Depending upon the hedging
program employed, market conditions and other factors, hedging activities
could reduce the cash flow which the Company would otherwise realize.
Competition. Certain foreign and domestic copper producers benefit
from higher-grade orebodies than those owned by the Company. Further, most
foreign producers benefit from lower labor rates and less stringent
environmental regulation than United States producers. Many foreign
producers maintain maximum production to meet government-imposed employment
and foreign exchange revenue goals, sometimes without regard to the
condition of the world copper market or the profitability of their mining
operations. The Company and other copper producers also compete with
manufacturers of other materials, including aluminum, stainless steel,
plastics and fiber optic cables. Should copper prices increase, use of
these alternative materials may also increase.
Environmental Regulation. The mining and mineral processing industries
are subject to extensive regulations for the protection of the environment,
including regulations relating to air and water quality, mine reclamation,
remediation, solid and hazardous waste handling and disposal and the
promotion of occupational safety. From time to time the Company is cited
for noncompliance with applicable environmental laws and regulations.
However, the Company believes that it is currently in material compliance
with these laws and regulations and, although there can be no assurance
in this regard, also believes that there is no pending environmental matter
that is likely to have a material adverse effect on its results of
operations. Future regulations or regulatory interpretations could require
the Company to modify or curtail its operations or incur substantial
additional expense. In this regard, the Company cannot predict, at this
time, the level of new emissions controls and related costs which may be
required for it to comply with standards governing emissions of sulphur,
particulates and air toxics that are expected to be adopted under the
federal Clean Air Act Amendments of 1990 and the Arizona Clean Air Act.
Industry Risks; Reserves. The Company is subject to the normal risks
encountered in the mining industry, such as unusual or unexpected geological
formations, cave-ins, flooding, fires, environmental issues and water
issues. The Company's mineral reserves may not conform to geological,
geomechanical, metallurgical or other expectations with the result that the
volume and grade of reserves recovered and rates of production may be less
than anticipated. Further, market price fluctuations in copper, changes in
operating and capital costs and other factors may affect ore reserves.
Development Projects. The Company is pursuing or evaluating several
development opportunities in an effort to enhance its ore reserves.
Development of these projects will require several hundred million dollars
in capital investment. To the extent undertaken, the Company intends to
finance its development projects with internal cash flow, cash reserves and
additional financings as necessary. The success of these projects is subject
to a number of factors, some of which are outside of the Company's control.
The cost estimates for these projects are subject to change. If the Company
is unable to replace its reserves from the mine development projects being
pursued or evaluated, or with other reserves identified or acquired in the
future, the Company's dependence upon third-party sources to supply copper
concentrate to its smelting and refining operations would increase.
Investments in Foreign Mining Properties. The Company is engaged in an
ongoing program of reviewing exploratory and operating properties for
acquisition or development. Many of these properties are located outside of
the United States. There are certain risks inherent in the acquisition and
operation of foreign properties, including the risks of political
instability, the possibility of adverse economic or tax reforms,
restrictions on the repatriation of funds, and currency risks. In the fourth
quarter of 1994, the Company acquired Magma Tintaya S. A. (formerly known as
Empressa Minera Especial Tintaya S.A.), which owns one of the largest
operating copper mining projects in Southern Peru. As part of its investment
in Tintaya, the Company and the government of Peru entered into a judicial
stability agreement and the Company became a party to an existing tax
stability agreement between the government and Tintaya. These agreements
provide for, among other things, free exchange of foreign currency,
remittance abroad of profits and capital, the right to use or sell any
product derived from Tintaya, and tax and legal stability. Although these
agreements do not eliminate all risk associated with its investment in
Tintaya, the Company believes that such agreements minimize a number of the
risks typically associated with an investment in a foreign property.
USE OF PROCEEDS
The Company anticipates that the net proceeds of the sales of the
Securities will be used for general corporate purposes or such other uses as
may be set forth in a Prospectus Supplement.
RATIO OF EARNINGS TO FIXED CHARGES AND EARNINGS TO COMBINED
FIXED CHARGES AND PREFERRED STOCK DIVIDEND REQUIREMENTS
For purposes of the following ratios: (i) "earnings" consist of income
before taxes, accounting changes and extraordinary items plus fixed charges
adjusted for capitalized interest and amortization of previously capitalized
interest; (ii) "fixed charges" consist of interest (including capitalized
interest) and the estimated interest portion of lease rental expenses,
amortization of debt expenses and write-offs of loan costs; and (iii)
"preferred stock dividend requirements" include dividends paid in zero
coupon notes and shares of Common Stock.
In calculating the ratio of earnings to combined fixed charges and
preferred stock dividend requirements, the preferred stock dividend
requirements were assumed to be equal to the pretax earnings required to
cover such dividend requirements. The amount of such pretax earnings
required to cover preferred stock dividends was computed using tax rates for
the applicable year. Preferred stock dividends are included in total "fixed
charges" and deducted from "earnings."
Three Months
ended
Year Ended December 31, March 31,
----------------------- ------------
1990 1991 1992 1993 1994 1994 1995
---- ---- ---- ---- ---- ---- ----
Ratio of earnings to fixed charges 2.9x -- 2.7x 1.5x 3.1x 1.5x 6.4x
Ratio of earnings to combined fixed
charges and preferred stock 2.5x -- 2.0x 1.4x 2.3x 1.1x 4.8x
dividend requirements
Before giving effect to the non-cash accounting adjustments taken in
1991 in connection with the Company's reorganization into distinct profit
centers and the related adoption of FASB No. 109 "Accounting for Income
Taxes" and FASB No. 106 "Employers' Accounting for Postretirement Benefits
Other Than Pensions," the ratio of earnings to fixed charges for the year
ended December 31, 1991 was 1.8x and the ratio of earnings to combined fixed
charges and preferred stock dividend requirements for that year was 1.5x.
After giving effect to such accounting adjustments, earnings were inadequate
to cover fixed charges by $167.5 million for the year ended December 31,
1991 and were inadequate to cover combined fixed charges and preferred stock
dividend requirements by $179.8 million for that year.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities may be issued from time to time in one or more
series and will constitute either Senior Debt Securities, Senior
Subordinated Debt Securities or Subordinated Debt Securities. The particular
terms of each series of Debt Securities offered hereunder, including the
nature of any variations from the following general provisions applicable to
such Debt Securities, will be described in a Prospectus Supplement relating
to such Debt Securities. Senior Debt Securities, Senior Subordinated Debt
Securities and Subordinated Debt Securities will each be issued under a
separate Indenture (herein referred to as the "Senior Indenture", "Senior
Subordinated Indenture" and "Subordinated Indenture", respectively; and
individually an "Indenture" and collectively the "Indentures") entered into
by the Company prior to the issuance of such Debt Securities. The forms of
Senior Indenture and Subordinated Indenture and the Senior Subordinated
Indenture, dated as of May 15, 1995, between the Company and State Street
Bank and Trust Company, as Trustee, have been filed as exhibits to or have
been incorporated by reference into the Registration Statement to which this
Prospectus relates. To the extent not included herein, information regarding
the trustee under an Indenture (individually a "Trustee" and collectively
the "Trustees") will be included in the applicable Prospectus Supplement
relating to the Debt Securities described therein.
The following discussion includes a summary description of the material
terms of the Indentures, other than terms which are specific to a particular
series of Debt Securities and which will be described in the Prospectus
Supplement relating to such series. The following summaries do not purport
to be complete and are subject to, and are qualified in their entirety by
reference to, all of the provisions of the Indentures, including the
definitions therein of certain terms capitalized in this Prospectus.
Wherever particular Sections, Articles or defined terms of the Indentures
are referred to herein or in a Prospectus Supplement, such Sections,
Articles or defined terms are incorporated herein or therein by reference.
General
The Debt Securities will be general unsecured obligations of the
Company. The Indentures do not limit the aggregate amount of Debt
Securities which may be issued thereunder, and Debt Securities may be issued
thereunder from time to time in separate series up to the aggregate amount
from time to time authorized by the Company for each series.
The applicable Prospectus Supplement or Prospectus Supplements will
describe the following terms of the series of Debt Securities in respect of
which this Prospectus is being delivered: (1) the title of such Debt
Securities, and whether such Debt Securities are Senior Debt Securities,
Senior Subordinated Debt Securities or Subordinated Debt Securities; (2) any
limit on the aggregate principal amount of such Debt Securities; (3) whether
any of such Debt Securities are to be issuable in permanent global form
("Global Security") and, if so, the terms and conditions, if any, upon which
interests in such Securities in global form may be exchanged, in whole or in
part, for the individual Debt Securities represented thereby; (4) the person
to whom any interest on any Debt Security of the series shall be payable if
other than the person in whose name the Debt Security is registered on the
Regular Record Date; (5) the date or dates on which such Debt Securities
will mature; (6) the rate or rates (which may be fixed or variable) of
interest, if any, or the method of calculation thereof, which such Debt
Securities will bear; (7) the date or dates from which any such interest
will accrue, the Interest Payment Dates on which any such interest on such
Debt Securities will be payable and the Regular Record Date for any interest
payable on any Interest Payment Date; (8) the place or places where the
principal of, premium, if any, and interest on such Debt Securities will be
payable; (9) the period or periods within which, the events upon the
occurrence of which, and the price or prices at which, such Debt Securities
may, pursuant to any optional or mandatory provisions, be redeemed or
purchased, in whole or in part, by the Company and any terms and conditions
relevant thereto; (10) the obligations of the Company, if any, to redeem or
repurchase such Debt Securities at the option of the holders; (11) the
denominations in which any such Debt Securities will be issuable, if other
than denominations of $1,000 and any integral multiple thereof; (12) the
currency, currencies or currency unit or units of payment of principal of
and any premium and interest on such Debt Securities if other than U.S.
dollars; (13) any index or formula used to determine the amount of payments
of principal of and any premium and interest on such Debt Securities; (14)
if the principal of, or premium, if any, or interest on such Debt Securities
is to be payable, at the election of the Company or a holder thereof, in one
or more currencies or currency units other than that or those in which such
Debt Securities are stated to be payable, the currency, currencies or
currency units in which payment of the principal of and any premium and
interest on Debt Securities of such series as to which such election is made
shall be payable, and the periods within which and the terms and conditions
upon which such election is to be made; (15) if other than the principal
amount thereof, the portion of the principal amount of such Debt Securities
of the series which will be payable upon acceleration of the Maturity
thereof; (16) whether the subordination provisions summarized below, or
different subordination provisions, shall apply to Debt Securities that are
Senior Subordinated Debt Securities or Subordinated Debt Securities and, if
so, the aggregate principal amount of Senior Indebtedness then outstanding;
(17) the applicability of any provisions described under "Covenants with
Respect to Senior Debt Securities" or "Covenants with Respect to Senior
Subordinated Debt Securities"; (18) the applicability of any provisions
described under "Defeasance"; (19) the terms and conditions, if any,
pursuant to which the Debt Securities are convertible or exchangeable into
Common Stock or other Securities; and (20) any other terms of such Debt
Securities not inconsistent with the provisions of the respective
Indentures.
Debt Securities may be issued at a discount from their principal
amount. United States Federal income tax considerations and other special
considerations applicable to any such Original Issue Discount Securities
will be described in the applicable Prospectus Supplement.
If the purchase price of any of the Debt Securities is denominated in a
foreign currency or currencies or a foreign currency unit or units or if the
principal of and any premium and interest on any series of Debt Securities
is payable in a foreign currency or currencies or a foreign currency unit or
units, the restrictions, elections, general tax considerations, specific
terms and other information with respect to such issue of Debt Securities
will be set forth in the applicable Prospectus Supplement.
The Indentures do not limit the amount of additional unsecured
indebtedness that the Company or its subsidiaries may incur. Further,
certain of the operations of the Company are and may in the future be
conducted through subsidiaries. To the extent so conducted, the ability of
the Company to meet its debt obligations, including obligations in respect
of the Debt Securities, would be dependent upon the earnings and cash flow
of its subsidiaries, and the claims of the holders of the Debt Securities
will be effectively subordinated to the claims of creditors of the Company's
subsidiaries.
Unless otherwise specified in the resolutions or any supplemental
indenture establishing the terms of the offered Debt Securities, the terms
of the offered Debt Securities or the covenants contained in the Indenture
do not afford holders protection in the event of a highly leveraged or other
similar transaction involving the Company that may adversely affect
securityholders.
Subordination of Senior Subordinated Debt Securities and Subordinated Debt
Securities
The term "Senior Indebtedness", when used with respect to any series of
Senior Subordinated Debt Securities, means indebtedness of the Company and
indebtedness guaranteed by the Company for principal of and premium and
interest on (a) money borrowed from banks or other lending institutions
whether outstanding on the date of the initial issuance of any Senior
Subordinated Debt Securities or thereafter incurred and (b) any other
indebtedness or obligation of the Company, whether outstanding on the date
of the initial issuance of any Senior Subordinated Debt Securities or
thereafter created, incurred, assumed or guaranteed, which is evidenced by a
note or other similar instrument, including Senior Debt Securities, unless
by the terms of such note or other instrument it is provided that such
indebtedness is not superior in right of payment to the Senior Subordinated
Debt Securities; provided, however, that Senior Indebtedness shall not
include (w) any other series of Senior Subordinated Debt Securities, (x) any
trade payables or notes or other instruments evidencing the same, (y) notes
or other obligations issued in lieu of cash dividends on, or in exchange
for, Capital Stock, or (z) any liability for federal, state, local or other
taxes owed or owing by the Company. At June 12, 1995, the Company had
outstanding three series of Senior Subordinated Debt Securities, with an
aggregate principal amount outstanding of $525,000,000.
The term "Senior Indebtedness", when used with respect to any series of
Subordinated Debt Securities, means indebtedness of the Company and
indebtedness guaranteed by the Company for principal of and premium and
interest on (a) money borrowed from banks or other lending institutions
whether outstanding on the date of the initial issuance of any Subordinated
Debt Securities or thereafter incurred and (b) any other indebtedness or
obligation of the Company, whether outstanding on the date of the initial
issuance of any Subordinated Debt Securities or thereafter created,
incurred, assumed or guaranteed, which is evidenced by a note or other
similar instrument, including Senior Debt Securities and Senior Subordinated
Debt Securities, unless by the terms of such note or other instrument it is
provided that such indebtedness is not superior in right of payment to the
Subordinated Debt Securities; provided, however, that Senior Indebtedness
shall not include (w) any other series of Subordinated Debt Securities, (x)
any trade payables or notes or other instruments evidencing the same, (y)
notes or other obligations issued in lieu of cash dividends on, or in
exchange for, Capital Stock, or (z) any liability for federal, state, local
or other taxes owed or owing by the Company.
In either case, the term "Senior Indebtedness" includes, without
limitation, (i) any and all interest accruing on any of the Senior
Indebtedness after the commencement of any bankruptcy, insolvency,
reorganization or other similar proceeding, notwithstanding any provision or
rule of law which might restrict the rights of any holder thereof as to such
interest, and (ii) any and all claims for principal of, premium and interest
on, and fees and expenses in respect of, Senior Indebtedness described in
clause (a) above, notwithstanding any disallowance, avoidance or
subordination of such claim under any insolvency, fraudulent conveyance or
equitable subordination law.
Payment of the principal amount of and premium, if any, and interest on
the Senior Subordinated Debt Securities and Subordinated Debt Securities,
respectively, will be subordinated in right of payment to the prior payment
in full of all Senior Indebtedness with respect thereto on the terms and
conditions of the respective Indentures governing such Senior Subordinated
Debt Securities and Subordinated Debt Securities, respectively. The Company
is prohibited from making any payment of principal of or premium or interest
on Senior Subordinated Debt Securities or Subordinated Debt Securities, as
the case may be, and any payment in respect of any redemption, retirement,
purchase or other acquisition of Senior Subordinated Debt Securities or
Subordinated Debt Securities, as the case may be, (i) unless, as of the
earlier to occur of the date such payment is made and the date that
provision is made for such payment in accordance with the terms of the
applicable Indenture, all amounts then due and payable for principal of and
premium, if any, and interest on Senior Indebtedness with respect to the
Senior Subordinated Debt Securities or Subordinated Debt Securities, as the
case may be, have been paid in full, or (ii) if at the earlier to occur of
the date of such payment or provision therefor, there has occurred any event
of default under the terms of such Senior Indebtedness entitling the holder
of such Senior Indebtedness to accelerate the maturity thereof as a result
of such event of default. Notwithstanding such prohibition, the Company may
make such payments, if (a) the Company or the Trustee has received a notice
of a default or an event of default under any agreement covering such Senior
Indebtedness (other than notice of a default or event of default relating to
payments of principal or interest, either at maturity, upon redemption, by
declaration or otherwise), which default or event of default would permit
the holders of such Senior Indebtedness to accelerate its maturity (whether
or not such acceleration has occurred), and (b) 179 days have passed after
the earliest date on which such notice was given with respect to such
default or event of default (a "Payment Blockage Period") so long as the
applicable Indenture otherwise permits payment at that time; provided,
however, that only one Payment Blockage Period may be commenced within one
360-day period with respect to the Senior Subordinated Debt Securities or
Subordinated Debt Securities, as the case may be. No event of default which
existed or was continuing on the date of the commencement of any Payment
Blockage Period with respect to the Senior Indebtedness shall be, or be
made, the basis for the commencement of a second Payment Blockage Period by
the representative for the holders of such Senior Indebtedness unless such
event of default shall have been cured or waived for a period of not less
than 90 consecutive days. (Article Fifteen of Senior Subordinated Indenture
and Subordinated Indenture)
Upon any payment or distribution of assets or securities of the Company
of any kind or character upon any dissolution, winding up or total
liquidation or reorganization of the Company (in bankruptcy or otherwise),
the holders of Senior Indebtedness with respect to the Senior Subordinated
Debt Securities or Subordinated Debt Securities, as the case may be, will
first be entitled to receive payment in full of principal of and premium, if
any, and interest on such Senior Indebtedness before the holders of Senior
Subordinated Debt Securities or Subordinated Debt Securities, as the case
may be, are entitled to receive any payment of the principal of or premium
or interest on such Senior Subordinated Debt Securities or Subordinated Debt
Securities, as the case may be. (Article Fifteen of Senior Subordinated
Indenture and Subordinated Indenture)
By reason of such provisions, in the event of insolvency, holders of
Senior Subordinated Debt Securities and Subordinated Debt Securities may
recover less, ratably, than holders of Senior Indebtedness with respect
thereto.
The Senior Debt Securities, when issued, will rank on a parity with all
other unsecured and unsubordinated indebtedness of the Company.
Conversion or Exchange of Debt Securities
If so indicated in the applicable Prospectus Supplement with respect to
a particular series of Debt Securities, such series will be convertible or
exchangeable into Common Stock or other securities on the terms and
conditions set forth therein.
Form, Exchange, Registration, Conversion, Transfer and Payment
Unless otherwise indicated in the applicable Prospectus Supplement, the
Debt Securities will be issued only in fully registered form in
denominations of $1,000 or integral multiples thereof. (Section 302)
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of principal of, premium, if any, and interest on the Debt Securities will
be payable, and the exchange, conversion and transfer of Debt Securities
will be registerable, at the office or agency of the Company maintained for
such purposes and at any other office or agency maintained for such purpose.
(Sections 301, 305 and 1002) No service charge will be made for any
registration of transfer or exchange of the Debt Securities, but the Company
may require payment of a sum sufficient to cover any tax or other
governmental charge imposed in connection therewith. (Section 305)
All monies paid by the Company to a paying agent for the payment of
principal of and any premium or interest on any Debt Security which remain
unclaimed for two years after such principal, premium or interest has become
due and payable may be repaid to the Company and thereafter the holder of
such Debt Security may look only to the Company for payment thereof.
(Section 1003)
Global Securities
The Debt Securities of a series may be issued in whole or in part in
the form of one or more Global Securities that will be deposited with, or on
behalf of, a Depositary ("Global Depositary") or its nominee identified in
the applicable Prospectus Supplement. In such a case, one or more Global
Securities will be issued in a denomination or aggregate denomination equal
to the portion of the aggregate principal amount of outstanding Debt
Securities of the series to be represented by such Global Security or
Securities. Unless and until it is exchanged in whole or in part for Debt
Securities in registered form, a Global Security may not be registered for
transfer or exchange except as a whole by the Global Depositary for such
Global Security to a nominee of such Global Depositary or by a nominee of
such Global Depositary to such Global Depositary or another nominee of such
Global Depositary or by such Global Depositary or any nominee to a successor
Global Depositary or a nominee of such successor Global Depositary and
except in the circumstances described in the applicable Prospectus
Supplement. (Sections 204 and 305)
The specific terms of the depositary arrangement with respect to any
portion of a series of Debt Securities to be represented by a Global
Security will be described in the applicable Prospectus Supplement. The
Company expects that the following provisions will apply to depositary
arrangements.
Unless otherwise specified in the applicable Prospectus Supplement,
Debt Securities which are to be represented by a Global Security to be
deposited with or on behalf of a Global Depositary will be represented by a
Global Security registered in the name of such Global Depositary or its
nominee. Upon the issuance of such Global Security, and the deposit of such
Global Security with or on behalf of the Global Depositary for such Global
Security, the Global Depositary will credit, on its book-entry registration
and transfer system, the respective principal amounts of the Debt Securities
represented by such Global Security to the accounts of institutions that
have accounts with such Global Depositary or its nominee ("participants").
The accounts to be credited will be designated by the underwriters or agents
of such Debt Securities or by the Company, if such Debt Securities are
offered and sold directly by the Company. Ownership of beneficial interest
in such Global Security will be limited to participants or Persons that may
hold interests through participants. Ownership of beneficial interests by
participants in such Global Security will be shown on, and the transfer of
that ownership interest will be effected only through, records maintained by
the Global Depositary or its nominee for such Global Security. Ownership of
beneficial interests in such Global Security by Persons that hold through
participants will be shown on, and the transfer of that ownership interest
within such participant will be effected only through, records maintained by
such participant. The laws of some jurisdictions require that certain
purchasers of securities take physical delivery of such securities in
certificated form. The foregoing limitations and such laws may impair the
ability to transfer beneficial interests in such Global Securities.
So long as the Global Depositary for a Global Security, or its nominee,
is the registered owner of such Global Security, such Global Depositary or
such nominee, as the case may be, will be considered the sole owner or
holder of the Securities represented by such Global Security for all
purposes under the applicable Indenture. Unless otherwise specified in the
applicable Prospectus Supplement, owners of beneficial interests in such
Global Security will not be entitled to have Debt Securities of the series
represented by such Global Security registered in their names, will not
receive or be entitled to receive physical delivery of Debt Securities of
such series in certificated form and will not be considered the holders
thereof for any purposes under the applicable Indenture. (Sections 204 and
305) Accordingly, each Person owning a beneficial interest in such Global
Security must rely on the procedures of the Global Depositary and, if such
Person is not a participant, on the procedures of the participant through
which such Person owns its interest, to exercise any rights of a holder
under the applicable Indenture. The Company understands that under existing
industry practices, if the Company requests any action of holders or an
owner of a beneficial interest in such Global Security desires to give any
notice or take any action a holder is entitled to give or take under an
Indenture, the Global Depositary would authorize the participants to give
such notice or take such action, and participants would authorize beneficial
owners owning through such participants to give such notice or take such
action or would otherwise act upon the instructions of beneficial owners
owning through them.
Principal of and any premium and interest on a Global Security will be
payable in the manner described in the applicable Prospectus Supplement.
Covenants with Respect to Senior Debt Securities
If so indicated in the applicable Prospectus Supplement with respect to
a particular series of Senior Debt Securities, holders of such Senior Debt
Securities will be entitled to the benefit of one or both of the following
covenants.
Restrictions on Secured Debt
Neither the Company nor any Subsidiary shall incur, issue, assume or
guarantee any notes, bonds, debentures or other evidences of indebtedness
for money borrowed (collectively, "Debt") secured after the date of the
Senior Indenture by a mortgage, pledge or lien ("Mortgage") on any Principal
Property of the Company or a Significant Subsidiary or on any shares of
stock or Debt of any Significant Subsidiary, unless the Company secures, or
causes such Significant Subsidiary to secure, the Senior Debt Securities
equally and ratably with (or, at the Company's option, prior to) such
secured Debt, together, at the determination of the Company, with certain
other Debt of the Company; provided, however, that such restriction shall
not apply to the incurrence of any secured Debt if, after giving effect
thereto, the aggregate outstanding principal amount of all such Debt so
secured after the date of the Senior Indenture, together with all
Attributable Debt of the Company and its Significant Subsidiaries in respect
of sale and leaseback transactions after the date of the Senior Indenture
and existing at such time involving Principal Properties owned by the
Company or a Significant Subsidiary (with the exception of such transactions
which are excluded as described in "Restrictions on Sales and Leasebacks"
below), would not exceed 10% of the Consolidated Assets of the Company and
its Subsidiaries.
This restriction will not apply to, and there shall be excluded in
computing secured Debt for the purpose of such restriction, Debt secured
prior to the date of the Senior Indenture and Debt secured by (a) Mortgages
on property of, or on any shares of stock of or Debt of, any corporation
existing at the time such corporation becomes a Significant Subsidiary; (b)
Mortgages in favor of the Company or a Significant Subsidiary; (c) Mortgages
in favor of governmental bodies to secure progress, advance or other
statutory or contract payments; Mortgages for taxes, assessments or other
governmental charges or levies; or materialmen's mechanics', carriers',
workmen's, repairmen's, landlord's and other like Mortgages; (d) Mortgages
on property, equipment, mines or facilities, or shares of stock or Debt, to
secure the payment of all or any part of the purchase price thereof or the
construction, improvement or development cost thereof, or any Debt incurred
in connection therewith, existing prior to, at the time of, or within 180
days after, the acquisition (including any acquisition through merger or
consolidation) or construction, improvement or development thereof, provided
that any such Mortgage shall only extend to the property, equipment, mines
or facilities, or shares of stock or Debt, acquired or constructed, improved
or developed, or to property or mines, including undeveloped mineralized
deposits or orebodies or segments thereof, on which the acquired or
constructed, improved or developed property, equipment, mines or facilities
is situated; (e) Mortgages securing certain tax-exempt obligations issued by
governmental bodies, including industrial revenue or pollution control
bonds; (f) Mortgages created in connection with a project financed, or
assets acquired, with, and created to secure, a Nonrecourse Obligation;
(g) production payments or other rights of others to the output of mines,
refineries, smelters, concentrators or production facilities, including
project financings with respect to any property or assets acquired,
constructed or improved by the Company or a Subsidiary with the proceeds of
such project financings; or Mortgages to secure the payment of workmen's
compensation or the performance of tenders, bids or similar contracts
(including surety or appeal bonds) and Mortgages entered into in the
ordinary course of business for similar purposes; or (h) subject to certain
limitations, any extension, renewal or refunding of any Mortgage referred to
in the foregoing clauses (a) through (g) inclusive. (Section 1006 of Senior
Indenture) The Senior Indenture does not restrict the Company or any
Subsidiary from incurring unsecured Debt.
Restrictions on Sales and Leasebacks
Neither the Company nor any Significant Subsidiary may enter into any
sale and leaseback transaction involving any Principal Property, unless
after giving effect thereto the aggregate amount of all Attributable Debt
with respect to all such transactions occurring after the date of the Senior
Indenture and existing at such time plus all outstanding secured Debt
incurred by the Company and its Significant Subsidiaries after the date of
the Senior Indenture (with the exception of secured Debt which is excluded
as described in "Restrictions on Secured Debt" above) would not exceed 10%
of Consolidated Assets of the Company and its Subsidiaries.
This restriction does not apply to, and there shall be excluded from
Attributable Debt in any computation under such restriction, any sale and
leaseback transaction if (a) the lease is for a period, including renewal
rights, not in excess of three years; (b) the sale or transfer of the
Principal Property is made prior to, at the time of, or within 180 days
after its acquisition or completion of construction; (c) the lease secures
or relates to certain tax-exempt obligations issued by governmental bodies,
including industrial revenue or pollution control bonds; (d) the transaction
is between the Company and a Significant Subsidiary or between Significant
Subsidiaries; (e) the lease payment obligation is created in connection with
a project financed, or assets acquired, with, and such obligation
constitutes, a Nonrecourse Obligation; or (f) the Company or such
Significant Subsidiary, within 180 days after the sale is completed, applies
to the retirement of Funded Debt of the Company or a Significant Subsidiary,
or to the purchase of other property which will constitute Principal
Property, an amount not less than the greater of (i) the net proceeds of the
sale of the Principal Property leased or (ii) the fair market value of the
Principal Property leased, as determined by certain officers of the Company.
The amount to be applied to the retirement of Funded Debt shall be reduced
by (x) the principal amount of any Funded Debt (including the Debt
Securities) of the Company or a Significant Subsidiary retired and
cancelled within 180 days after such sale with proceeds other than the
proceeds from such sale and (y) the principal amount of Funded Debt, other
than any Funded Debt referred to in the preceding clause (x), voluntarily
retired by the Company or any Significant Subsidiary within 180 days after
such sale using proceeds other than the proceeds of such sale. (Section 1007
of Senior Indenture)
Covenants with Respect to Senior Subordinated Debt Securities
If so indicated in the applicable Prospectus Supplement with respect to
a particular series of Senior Subordinated Debt Securities, holders of such
Senior Subordinated Debt Securities will be entitled to the benefit of one
or both of the following covenants.
Limitation on Subordinated Liens
Neither the Company nor any Subsidiary shall incur, issue, assume or
guarantee any Debt which is pari passu or (by the express terms thereof)
subordinate in right of payment to the Senior Subordinated Debt Securities,
secured after the date of the Senior Subordinated Indenture by a Mortgage on
any Principal Property of the Company or a Significant Subsidiary or on any
shares of stock or Debt of any Significant Subsidiary, unless the Company
secures, or causes such Significant Subsidiary to secure, the Senior
Subordinated Debt Securities (i) equally and ratably with (or, at the
Company's option, prior to) such secured Debt or (ii) in the event such
secured Debt is subordinated in right to payment to the Senior Subordinated
Securities, prior to such secured Debt, together, at the determination of
the Company, with certain other Debt of the Company; provided, however, that
such restriction shall not apply to the incurrence of any secured Debt if,
after giving effect thereto, the aggregate amount of all such Debt so
secured after the date of the Senior Subordinated Indenture and then
outstanding would not exceed 10% of the Consolidated Assets of the Company
and its Subsidiaries.
This restriction will not apply to, and there shall be excluded in
computing secured Debt for the purpose of such restriction, Debt secured
prior to the date of the Senior Subordinated Indenture and Debt secured by
(a) Mortgages on property of, or on any shares of stock of or Debt of, any
corporation existing at the time such corporation becomes a Significant
Subsidiary; (b) Mortgages in favor of the Company or a Significant
Subsidiary; (c) Mortgages in favor of governmental bodies to secure
progress, advance or other statutory or contract payments; Mortgages for
taxes, assessments or other governmental changes or levies; or
materialmen's mechanics', carriers', workmen's, repairmen's, landlord's and
other like Mortgages; (d) Mortgages on property, equipment, mines or
facilities, or shares of stock or Debt, to secure the payment of all or any
part of the purchase price thereof or the construction, improvement or
development cost thereof, or any Debt incurred in connection therewith,
existing prior to, at the time of, or within 180 days after, the acquisition
(including any acquisition through merger or consolidation) or construction,
improvement or development thereof, provided that any such Mortgage shall
only extend to the property, equipment, mines or facilities, or shares of
stock or Debt, acquired or constructed, improved or developed, or to
property or mines, including undeveloped mineralized deposits or orebodies
or segments thereof, on which the acquired or constructed, improved or
developed property, equipment, mines or facilities is situated; (e)
Mortgages securing certain tax-exempt obligations issued by governmental
bodies, including industrial revenue or pollution control bonds; (f)
Mortgages created in connection with a project financed, or assets acquired,
with, and created to secure, a Nonrecourse Obligation; (g) production
payments or other rights of others to the output of mines, refineries,
smelters, concentrators or production facilities, including project
financings, with respect to any property or assets acquired, constructed or
improved by the Company or a Subsidiary with the proceeds of such project
financings; or Mortgages to secure the payment of workmen's compensation or
the performance of tenders, bids or similar contracts (including surety or
appeal bonds) and Mortgages entered into in the ordinary course of business
for similar purposes; or (h) subject to certain limitations, any extension,
renewal or refunding of any Mortgage referred to in the foregoing clauses
(a) through (g) inclusive. (Section 1006 of Senior Subordinated Indenture)
The Senior Subordinated Indenture does not restrict the Company or any
Subsidiary from incurring unsecured Debt.
Limitation on Certain Debt
The Company shall not incur any Debt which by its terms is both (i)
subordinated in right of payment to any Senior Debt and (ii) senior in right
of payment to the Senior Subordinated Debt Securities.
Events of Default
The following are Events of Default under the Indentures with respect
to Debt Securities of any series: (a) failure to pay principal of or
premium, if any, on any Debt Security of that series when due; (b) failure
to pay any interest on any Debt Security of that series when due, continued
for 30 days; (c) failure to make any sinking fund payment, when due, in
respect of any Debt Security of that series; (d) failure to perform in any
material respect any other covenant of the Company in the applicable
Indenture (other than a covenant included in such Indenture solely for the
benefit of a series of Debt Securities other than that series), continued
for 60 days after written notice as provided in the respective Indentures;
(e) acceleration of any indebtedness for money borrowed by the Company in
excess of $20 million, if such acceleration is not annulled as provided in
the respective Indentures; (f) certain events of bankruptcy, insolvency or
reorganization; and (g) any other Event of Default provided with respect to
Debt Securities of that series. (Section 501)
If an Event of Default with respect to outstanding Debt Securities of
any series shall occur and be continuing, either the Trustee or the holders
of at least 25% in principal amount of the outstanding Debt Securities of
that series by notice as provided in the respective Indentures may declare
the principal amount (or, if the Debt Securities of that series are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of that series) of all Debt Securities of that series
to be due and payable immediately. However, at any time after a declaration
of acceleration with respect to Debt Securities of any series has been made,
but before a judgment or decree based on such acceleration has been
obtained, the holders of a majority in principal amount of the outstanding
Debt Securities of that series may, under certain circumstances, rescind and
annul such acceleration. (Section 502) For information as to waiver of
defaults, see "Modification and Waiver" below.
The Indentures provide that, subject to the duty of the respective
Trustees thereunder during an Event of Default to act with the required
standard of care, such Trustee will be under no obligation to exercise any
of its rights or powers under the respective Indentures at the request or
direction of any of the holders, unless such holders shall have offered to
such Trustee reasonable security or indemnity. (Sections 601 and 603)
Subject to certain provisions, including those requiring security or
indemnification of the Trustees, the holders of a majority in principal
amount of the outstanding Debt Securities of any series will have the right
to direct the time, method and place of conducting any proceeding for any
remedy available to the applicable Trustee, or exercising any trust or power
conferred on such Trustee, with respect to the Debt Securities of that
series. (Section 512)
No holder of a Debt Security of any series will have any right to
institute any proceeding with respect to the applicable Indenture or for any
remedy thereunder, unless such holder shall have previously given to the
applicable Trustee written notice of a continuing Event of Default (as
defined) and unless also the holders of at least 25% in aggregate principal
amount of the outstanding Debt Securities of the same series shall have made
written request, and offered reasonable indemnity, to the Trustee to
institute such proceeding as trustee, and the Trustee shall not have
received from the holders of a majority in aggregate principal amount of the
outstanding Debt Securities of the same series a direction inconsistent with
such request and shall have failed to institute such proceeding within 60
days. (Section 507) However, such limitations do not apply to a suit
instituted by a holder of a Debt Security for enforcement of payment of the
principal of and interest on such Debt Security on or after the respective
due dates expressed in such Debt Security. (Section 508)
The Company will be required to furnish to the Trustees annually a
statement as to the performance by the Company of its obligations under the
respective Indentures and as to any default in such performance. (Section
1004)
Modification and Waiver
Without the consent of any holder of outstanding Debt Securities, the
Company and the Trustee may amend or supplement the Indentures or the Debt
Securities to cure any ambiguity, defect or inconsistency, or to make any
change that does not materially adversely affect the rights of any holder of
Debt Securities. (Section 901) Other modifications and amendments of the
respective Indentures may be made by the Company and the Trustee with the
consent of the holders of not less than a majority in aggregate principal
amount of the outstanding Debt Securities of each series affected thereby;
provided, however, that no such modification or amendment may, without the
consent of the holder of each outstanding Debt Security affected thereby:
(a) change the Stated Maturity of the principal of, or any installment of
principal of, or interest on, any Debt Security; (b) reduce the principal
amount of, the rate of interest on, or the premium, if any, payable upon the
redemption of, any Debt Security; (c) reduce the amount of principal of an
Original Issue Discount Security payable upon acceleration of the Maturity
thereof; (d) change the place or currency of payment of principal of, or
premium, if any, or interest on any Debt Security; (e) impair the right to
institute suit for the enforcement of any payment on or with respect to any
Debt Security on or after the Stated Maturity or Redemption Date thereof;
(f) modify the conversion provisions applicable to Convertible Debt
Securities in a manner adverse to the holders thereof; (g) modify the
subordination provisions applicable to Senior Subordinated Debt Securities
or Subordinated Debt Securities in a manner adverse to the holders thereof;
or (h) reduce the percentage in principal amount of outstanding Debt
Securities of any series, the consent of the holders of which is required
for modification or amendment of the applicable Indenture or for waiver of
compliance with certain provisions of the applicable Indenture or for waiver
of certain defaults. (Section 902)
The holders of at least a majority in aggregate principal amount of the
outstanding Debt Securities of any series may on behalf of the holders of
all Debt Securities of that series waive, insofar as that series is
concerned, compliance by the Company with certain covenants of the
applicable Indenture. (Section 1009) The holders of not less than a
majority in principal amount of the outstanding Debt Securities of any
series may, on behalf of the holders of all Debt Securities of that series,
waive any past default under the applicable Indenture with respect to that
series, except a default in the payment of the principal of, or premium, if
any, or interest on, any Debt Security of that series or in respect of a
provision which under the applicable Indenture cannot be modified or amended
without the consent of the holder of each outstanding Debt Security of that
series affected. (Section 513)
Consolidation, Merger and Sale of Assets
The Company may not consolidate or merge with or into, or transfer or
lease all or substantially all of its assets to, any Person, and any other
Person may not consolidate or merge with or into, the Company, unless (i)
the Person formed by such consolidation or into which the Company is merged
or which acquires or leases all or substantially all of the assets of the
Company expressly assumes all of the Company's obligations on the Debt
Securities and under the Indenture, (ii) immediately after giving effect to
such transaction no Event of Default shall have happened and be continuing,
and (iii) certain other conditions are met. (Article Eight)
Defeasance
If so indicated in the applicable Prospectus Supplement with respect to
the Debt Securities of a series, the Company, at its option (i) will be
discharged from any and all obligations in respect of the Debt Securities of
such series (except for certain obligations to register the transfer or
exchange of Debt Securities of such series, to replace destroyed, stolen,
lost or mutilated Debt Securities of such series, and to maintain an office
or agency in respect of the Debt Securities and hold moneys for payment in
trust) or (ii) will be released from its obligations to comply with the
covenants that are specified under "Covenants with Respect to Senior Debt
Securities" or "Covenants with Respect to Senior Subordinated Debt
Securities" above (and any covenants that may apply to Subordinated Debt
Securities) with respect to the Debt Securities of such series, and the
occurrence of an event described in clause (d) under "Events of Default"
above with respect to any defeased covenant, and clauses (e) and (g) under
"Events of Default" above shall no longer be Events of Default, if in
either case the Company irrevocably deposits with the Trustee, in trust,
money or U.S. Government Obligations that through the payment of interest
thereon and principal thereof in accordance with their terms will provide
money in an amount sufficient to pay all the principal of and premium, if
any, and any interest on the Debt Securities of such series on the dates
such payments are due (which may include one or more redemption dates
designated by the Company) in accordance with the terms of such Debt
Securities. Such a trust may only be established if, among other things,
(a) no Event of Default or event which with the giving of notice or lapse of
time, or both, would become an Event of Default under the applicable
Indenture shall have occurred and be continuing on the date of such deposit,
(b) no Event of Default described under clause (f) under "Events of Default"
above or event which with the giving of notice or lapse of time, or both,
would become an Event of Default described under such clause (f) shall have
occurred and be continuing at any time during the period ending on the 91st
day following such date of deposit, and (c) the Company shall have delivered
an Opinion of Counsel to the effect that the holders of the Debt Securities
will not recognize gain or loss for United States Federal income tax
purposes as a result of such deposit or defeasance and will be subject to
United States Federal income tax in the same manner as if such defeasance
had not occurred. In the event the Company fails to comply with its
remaining obligations under the applicable Indenture after a defeasance of
such Indenture with respect to the Debt Securities of any series as
described under clause (ii) above and the Debt Securities of such series are
declared due and payable because of the occurrence of any undefeased Event
of Default, the amount of money and U.S. Government Obligations on deposit
with the Trustee may be insufficient to pay amounts due on the Debt
Securities of such series at the time of the acceleration resulting from
such Event of Default. However, the Company will remain liable in respect
to such payments. (Article Thirteen)
Notwithstanding the description set forth under "Subordination of
Senior Subordinated Debt Securities and Subordinated Debt Securities" above,
in the event that the Company deposits money or U.S. Government Obligations
in compliance with the Indenture that governs the Senior Subordinated Debt
Securities or Subordinated Debt Securities, as the case may be, in order to
defease all or certain of its obligations with respect to the applicable
series of Debt Securities, the moneys or U.S. Government Obligations so
deposited will not be subject to the subordination provisions of the
applicable Indenture and the indebtedness evidenced by such series of Debt
Securities will not be subordinated in right of payment to the holders of
applicable Senior Indebtedness to the extent of the moneys or U.S.
Government Obligations so deposited.
Provision of Financial Information
The Company will provide to the Trustee a copy of all financial reports
it files with the Commission. If, during any reporting period, the Company
is not required to file such reports with the Commission, the Company will
provide the Trustee substantially similar financial reports concerning the
Company as if the Company were so required.
Governing Law
The Indentures and the Debt Securities will be governed by, and
construed in accordance with, the laws of the State of New York. (Section
112)
Regarding the Trustee
Chemical Trust Company of California, an affiliate of Chemical Bank,
N.A., will serve as Trustee under the Indenture governing the Senior Debt
Securities. Chemical Bank, N.A. is a lender and the administrative agent
under the Company's Revolving Credit Agreement.
State Street Bank and Trust Company will be the Trustee under the
Indenture governing the Senior Subordinated Debt Securities. It is also the
trustee under the indentures governing the Company's 12% Senior Subordinated
Notes due 2001, its 11-1/2% Senior Subordinated Notes due 2002, and its
8.70% Senior Subordinated Notes due May 15, 2005.
The Trustee with respect to the Indenture governing Subordinated Debt
Securities will be specified in the applicable Prospectus Supplement
relating thereto.
If any Trustee were to have any conflicting interest at the time of
any default under the Debt Securities, it would have to eliminate such
conflict or resign as Trustee. (Section 608)
Certain Definitions
The following terms have the meanings ascribed to them below, except as
otherwise provided with respect to any series of Debt Securities:
The term "Attributable Debt" shall mean, as to any particular
Capitalized Lease under which any Person is at the time liable, at any date
of which the amount thereof is to be determined, the total net amount of
rent required to be paid by such Person under such Capitalized Lease during
the remaining primary term thereof, discounted from the respective due dates
thereof to such date at the rate of interest per annum implicit in the terms
of such Capitalized Lease, as determined in good faith by the Company. The
net amount of rent required to be paid under such Capitalized Lease for any
such period shall be the amount of the rent payable by the lessee with
respect to such period, after excluding amounts required to be paid on
account of maintenance, repairs, insurance, taxes, assessments, water rates
and similar charges. In the case of any Capitalized Lease which is
terminable by the lessee upon the payment of a penalty, such net amount
shall also include the amount of such penalty, but shall not include any
rent required to be paid under such Capitalized Lease subsequent to the
first date upon which it may be so terminated.
The term "Consolidated Assets" shall mean the aggregate amount of
assets, all as set forth on the most recent balance sheet of the Company and
its consolidated Subsidiaries and computed in accordance with generally
accepted accounting principles.
The term "Funded Debt" shall mean all indebtedness for money borrowed
having a maturity of more than 12 months from the date as of which the
amount thereof is to be determined or having a maturity of less than 12
months but by its terms being renewable or extendable beyond 12 months from
such date at the option of the borrower.
The term "Nonrecourse Obligation" shall mean indebtedness or lease
payment obligations substantially related to and entered into or effective
before, at the time of or after (i) the acquisition (including any
acquisition by merger or consolidation) of property or assets not currently
owned by the Company or any of its Significant Subsidiaries or (ii)
the financing of the acquisition, construction, development or improvement
of property, equipment, mines or facilities of the Company or any of
its Significant Subsidiaries, as to which the obligee with respect to
such indebtedness or obligation has no recourse to the general corporate
funds of the Company or any of its Significant Subsidiaries or to the
assets, in general, of the Company or any of its Significant Subsidiaries,
other than the property, equipment, mines or facilities acquired or
constructed, improved or developed, or to property or mines, including
undeveloped mineralized deposits or orebodies or segments thereof, on which
the acquired or constructed, improved or developed property, equipment,
mines or facilities is situated or that forms, with the property, equipment,
mines or facilities acquired or constructed, improved or developed, an
integrated plan to bring into or enhance the production of minerals or
metals therefrom.
The term "Person" shall mean any individual, corporation, partnership,
joint venture, trust, association, company, joint-stock company, business
trust, unincorporated organization or government or any agency or political
subdivision thereof.
The term "Principal Property" shall mean any smelters, refineries,
mines, concentrators or other facilities, located within the present 50
states of the United States of America (other than its territories or
possessions), owned by the Company or any Subsidiary, in each case the gross
book value (without deduction of any depreciation reserves) of which on the
date as of which the determination is being made exceeds 3% of Consolidated
Assets, other than any such portion thereof which is pollution control or
other equipment or facility financed by obligations issued by a State or
local government unit; provided, however, that Principal Property shall not
include any smelters, refineries, mines, concentrators or facilities or any
portions thereof which the Board of Directors of the Company declares by
resolution are not of material importance to the total business conducted by
the Company and its Subsidiaries as an entirety.
The term "Significant Subsidiary" shall mean any Subsidiary of the
Company which owns a Principal Property and any Subsidiary that owns
directly or indirectly stock of a Significant Subsidiary.
The term "Subsidiary" shall mean a corporation more than 50% of the
outstanding Voting Stock of which is owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by the Company and one or
more other Subsidiaries.
The term "Voting Stock" shall mean stock which ordinarily has voting
power for the election of directors, whether at all times or only so long as
no senior class of stock has such voting power by reason of any contingency.
DESCRIPTION OF PREFERRED STOCK
The following is a description of certain general terms and provisions
of the Preferred Stock. The particular terms of any series of Preferred
Stock will be described in the applicable Prospectus Supplement. If so
indicated in a Prospectus Supplement, the terms of any such series may
differ from the terms set forth below. Certain provisions applicable to the
Preferred Stock are set forth below under "Description of Common Stock."
The summary of terms of the Company's Preferred Stock contained in this
Prospectus does not purport to be complete and is subject to, and qualified
in its entirety by, the provisions of the Company's Certificate of
Incorporation and the certificate of designations relating to each series of
the Preferred Stock (the "Certificate of Designations"), the form of which
is an exhibit to the Registration Statement of which this Prospectus is a
part.
The Company's Certificate of Incorporation authorizes the issuance of
50,000,000 shares of preferred stock. In December 1993, the Company closed
the sale of 2.0 million shares of 6% Cumulative Convertible Preferred Stock,
Series E, $.01 par value. See "Series E Preferred Stock" below.
Additionally, in July 1993, the Company issued 2.0 million shares of 5 5/8%
Cumulative Convertible Preferred Stock, Series D, $.01 par value. See
"Series D Preferred Stock" below. The Company also has 5,112,765 shares of
Series C Convertible Preferred Stock, $.01 par value, reserved for issuance
in certain instances. See "Reserved but Unissued Series C Convertible
Preferred Stock" below. The Company's preferred stock may be issued from
time to time in one or more series, without stockholder approval. Subject
to limitations prescribed by law, the Board of Directors is authorized to
determine the voting powers (if any), designation, preferences and relative,
participating, optional or other special rights, and qualifications,
limitations or restrictions thereof, for each series of preferred stock that
may be issued, and to fix the number of shares of each such series. Thus,
the Board of Directors, without stockholder approval, could authorize the
issuance of preferred stock with voting, conversion and other rights that
could adversely affect the voting power and other rights of holders of
Common Stock or other series of preferred stock or that could have the
effect of delaying, deferring or preventing a change in control of the
Company. See "Description of Common Stock" herein.
The Preferred Stock shall have the dividend, liquidation, redemption
and voting rights set forth below unless otherwise provided in a Prospectus
Supplement relating to a particular series of the Preferred Stock. The
applicable Prospectus Supplement will describe the following terms of the
series of Preferred Stock in respect of which this Prospectus is being
delivered: (1) the designation and stated value per share of such Preferred
Stock and the number of shares offered; (2) the amount of liquidation
preference per share; (3) the initial public offering price at which such
Preferred Stock will be issued and any exchange upon which the stock will be
listed; (4) the dividend rate (or method of calculation), the dates on which
dividends shall be payable and the dates from which dividends shall commence
to cumulate, if any; (5) any redemption or sinking fund provisions; (6) any
conversion or exchange rights; (7) whether the Company has elected to offer
Depositary Shares as described below under "Description of Depositary
Shares"; and (8) any additional voting, dividend, liquidation, redemption,
sinking fund and other rights, preferences, privileges, limitations and
restrictions.
General
The Preferred Stock offered hereby will be issued in one or more
series. The holders of Preferred Stock will have no preemptive rights.
Preferred Stock, upon issuance against full payment of the purchase price
therefor, will be fully paid and nonassessable. Neither the par value nor
the liquidation preference is indicative of the price at which the Preferred
Stock will actually trade on or after the date of issuance.
As described under "Description of Depositary Shares," the Company may,
at its option, elect to offer Depositary Shares evidenced by Depositary
Receipts, each representing a fractional interest (to be specified in the
Prospectus Supplement relating to the particular series of the Preferred
Stock) in a share of the particular series of the Preferred Stock issued and
deposited with a Depositary (as defined below).
Rank
The Preferred Stock shall, with respect to dividend rights and rights
on liquidation, winding up and dissolution of the Company, rank prior to the
Company's Common Stock and to all other classes and series of equity
securities of the Company now or hereafter authorized, issued or outstanding
(the Common Stock and such other classes and series of equity securities
collectively may be referred to herein as the "Junior Stock"), other than
any classes or series of equity securities of the Company ranking on a
parity with (the "Parity Stock") or senior to (the "Senior Stock") the
Preferred Stock as to dividend rights and rights upon liquidation, winding
up or dissolution of the Company. The Preferred Stock shall be junior to
all outstanding debt of the Company. The Preferred Stock shall be subject
to creation of Senior Stock, Parity Stock and Junior Stock to the extent not
expressly prohibited by the Company's Certificate of Incorporation.
Dividends
Holders of shares of Preferred Stock shall be entitled to receive,
when, as and if declared by the Board of Directors out of funds of the
Company legally available for payment, cash dividends, payable at such dates
and at such rates per share per annum as set forth in the applicable
Prospectus Supplement. Such rate may be fixed or variable or both. Each
declared dividend shall be payable to holders of record as they appear at
the close of business on the stock books of the Company (or, if applicable,
on the records of the Depositary) on such record dates, not more than 60
calendar days preceding the payment dates therefor, as are determined by the
Board of Directors (each of such dates, a "Record Date").
Such dividends may be cumulative or noncumulative, as provided in the
Prospectus Supplement. If dividends on a series of Preferred Stock are
noncumulative and if the Board of Directors fails to declare a dividend in
respect of a dividend period with respect to such series, then holders of
such Preferred Stock will have no right to receive a dividend in respect of
such dividend period, and the Company will have no obligation to pay the
dividend for such period, whether or not dividends are declared payable on
any future dividend payment dates. Dividends on the shares of each series
of Preferred Stock for which dividends are cumulative will accrue from the
date on which the Company initially issues shares of such series.
Accumulations of dividends on shares of Preferred Stock will not bear
interest.
No full dividends shall be declared or paid or set apart for payment on
preferred stock of the Company of any series ranking, as to dividends, on a
parity with or junior to the series of Preferred Stock offered by the
Prospectus Supplement attached hereto for any period unless full dividends
for the immediately preceding dividend period on such Preferred Stock
(including any accumulation in respect of unpaid dividends for prior
dividend periods, if dividends on such Preferred Stock are cumulative) have
been or contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof is set apart for such payment. When
dividends are not so paid in full (or a sum sufficient for such full payment
is not so set apart) upon such Preferred Stock and any other preferred stock
of the Company ranking on a parity as to dividends with the Preferred Stock,
dividends upon shares of such Preferred Stock and dividends on such other
preferred stock shall be declared pro rata so that the amount of dividends
declared per share on such Preferred Stock and such Parity Stock shall in
all cases bear to each other the same ratio that accrued dividends on the
shares of such Preferred Stock and accrued dividends on shares of such
Parity Stock, bear to each other as of their respective immediately
preceding dividend periods. Unless full dividends on the series of
Preferred Stock offered by the Prospectus Supplement attached hereto have
been declared and paid or set apart for payment for the immediately
preceding dividend period (including any accumulation in respect of unpaid
dividends for prior dividend periods, if dividends on such Preferred Stock
are cumulative), (a) no cash dividend or distribution (other than in shares
of Junior Stock) may be declared, set aside or paid on the Junior Stock, (b)
the Company may not, directly or indirectly, repurchase, redeem or otherwise
acquire any shares of its Junior Stock (or pay any monies into a sinking
fund for the redemption of any shares) except by conversion into or exchange
for Junior Stock or in connection with any employee benefit plan or
arrangement, and (c) the Company may not, directly or indirectly,
repurchase, redeem or otherwise acquire any shares of such Preferred Stock
or Parity Stock (or pay any monies into a sinking fund for the redemption of
any shares of any such stock) otherwise than pursuant to pro rata offers to
purchase or a concurrent redemption of all, or a pro rata portion, of the
outstanding shares of such Preferred Stock and Parity Stock (except by
conversion into or exchange for Junior Stock or in connection with any
employee benefit plan or arrangement).
Convertibility
The terms, if any, on which shares of Preferred Stock of any series may
be exchanged for or converted (mandatorily or otherwise) into shares of
Common Stock of the Company or another series of preferred stock or other
securities of the Company will be set forth in the Prospectus Supplement
relating thereto. See "Description of Common Stock."
Redemption
The terms, if any, on which shares of Preferred Stock of any series may
be redeemed will be set forth in the related Prospectus Supplement.
Liquidation
Unless otherwise specified in the applicable Prospectus Supplement, in
the event of a voluntary or involuntary liquidation, dissolution or winding
up of the affairs of the Company, the holders of a series of Preferred Stock
will be entitled, subject to the rights of creditors, but before any
distribution or payment to the holders of Common Stock or any other security
ranking junior to the Preferred Stock on liquidation, dissolution or winding
up of the Company, to receive out of the assets of the Company, whether such
assets are capital or surplus and whether or not any dividends as such are
declared, an amount per share as set forth in the related Prospectus
Supplement plus any accrued and unpaid dividends for prior dividend periods,
if dividends on such series of Preferred Stock are cumulative. If the
amounts available for distribution with respect to the Preferred Stock and
all other outstanding stock of the Company ranking on a parity with the
Preferred Stock upon liquidation are not sufficient to satisfy the full
liquidation rights of all the outstanding Preferred Stock and stock ranking
on a parity therewith, then the holders of each series of such stock will
share ratably in any such distribution of assets in proportion to the full
respective preferential amount (which in the case of preferred stock may
include accumulated dividends) to which they are entitled. After payment of
the full amount of the liquidation preference, the holders of shares of
Preferred Stock will not be entitled to any further participation in any
distribution of assets by the Company.
Voting
The Preferred Stock of a series will not be entitled to vote, except as
provided below or in the applicable Prospectus Supplement and as required by
applicable law. Unless otherwise specified in the related Prospectus
Supplement, at any time dividends in an amount equal to six quarterly
dividend payments on the Preferred Stock shall have accrued and be unpaid,
holders of the Preferred Stock shall have the right to a separate class vote
(together with the holders of shares of any Parity Stock upon which like
voting rights have been conferred and are exercisable, "Voting Parity
Stock") to elect two additional members to the Board of Directors at the
next annual meeting of stockholders (or, if called by 25% in interest of
such Preferred Stock, a special meeting of stockholders) and to maintain
such director representation until dividends on the Preferred Stock have
been paid in full (including any accumulation in respect of unpaid dividends
from prior dividend periods, if dividends on such Preferred Stock are
cumulative) or declared and a sum sufficient for the payment thereof is set
apart for such payment. Additionally, without the affirmative vote of the
holders of two-thirds of the shares of Preferred Stock then outstanding
(voting separately as a class together with any Voting Parity Stock), the
Company may not, either directly or indirectly or through merger or
consolidation with any other corporation, (i) approve the authorization,
creation or issuance, or an increase in the authorized or issued amount, of
any class or series of stock ranking prior to the shares of Preferred Stock
in rights and preferences, or (ii) amend, alter or repeal its Certificate of
Incorporation or the Certificate of Designations relating to the Preferred
Stock so as to materially and adversely change the voting powers, rights or
preferences of the Preferred Stock, provided, however, that if any such
amendment, alteration or repeal would materially adversely affect any voting
powers, rights or preferences of the Preferred Stock or another series of
Voting Parity Stock that are not enjoyed by some or all of the other series
otherwise entitled to vote in accordance herewith, the affirmative vote of
at least two-thirds of the votes entitled to be cast by the holders of all
series similarly affected shall be required in lieu of the affirmative vote
of at least two-thirds of the votes entitled to be cast by the holders of
the shares of Preferred Stock and the Voting Parity Stock otherwise entitled
to vote in accordance herewith; and provided, further, that no vote of the
holders of Preferred Stock shall be required if, at or prior to the time
when such amendment, alteration or repeal is to take effect, or when the
issuance of any such class or series of stock ranking prior to the shares of
Preferred Stock in rights and preferences, is to be made, as the case may
be, provision is made for the redemption of all shares of Preferred Stock at
the time outstanding. An amendment which increases the number of authorized
shares of or authorizes the creation or issuance of other classes or series
of preferred stock ranking junior to or on a parity with the Preferred Stock
with respect to the payment of dividends or distribution of assets upon
liquidation, dissolution or winding up, or substitutes the surviving entity
in a merger, consolidation, reorganization or other business combination for
the Company, shall not be considered to be an adverse change requiring the
approval of the Preferred Stock.
As more fully described under "Description of Depositary Shares" below,
if the Company elects to issue Depositary Shares, each representing a
fraction of a share of a series of the Preferred Stock, each such Depositary
Share will, in effect, be entitled to such fraction of a vote per Depositary
Share.
No Other Rights
The shares of a series of Preferred Stock will not have any
preferences, voting powers or relative, participating, optional or other
special rights except as set forth above or in the related Prospectus
Supplement, and in the Certificate of Incorporation and the Certificate of
Designations related thereto, or as otherwise required by law.
Transfer Agent and Registrar
The transfer agent for each series of Preferred Stock will be described
in the related Prospectus Supplement.
Series E Preferred Stock
In December 1993, the Company issued 2.0 million shares of 6%
Cumulative Convertible Preferred Stock, Series E, $.01 par value (the
"Series E Preferred Stock"). Holders of the Series E Preferred Stock are
entitled to receive, when, as, and if declared by the Company's Board of
Directors out of funds legally available therefore, cumulative cash
dividends at the rate of 6% per annum (an amount equivalent to $3.00 per
annum per share), payable quarterly in arrears. In the event of any
voluntary or involuntary liquidation, dissolution or winding up of the
Company, the holders of the Series E Preferred Stock will be entitled to
receive distributions in the amount of $50.00 per share, plus all accrued
and unpaid dividends. Each share of Series E Preferred Stock is
convertible, in whole or in part, at any time, unless previously redeemed,
into 3.5945 shares of Common Stock (equivalent to a conversion price of
$13.91 per share of Common Stock). The conversion rate is subject to
adjustment upon the occurrence of certain events.
The Series E Preferred Stock ranks junior to all outstanding debt of
the Company. With respect to the payment of dividends and amounts upon
liquidation, dissolution or winding up, the Series E Preferred Stock ranks
on a parity with the Company's Series D Preferred Stock and senior to the
Common Stock and the Series C Preferred Stock.
Whenever dividends on the Series E Preferred Stock are in arrears for
six quarterly dividend periods, holders of the Series E Preferred Stock
(voting separately as a class together with holders of shares of the
Company's Series D Preferred Stock and any other class or series of equity
securities ranking on a parity with the Series E Preferred Stock) will have
the right to elect two additional directors to serve on the Company's Board
of Directors until such dividend arrearage is eliminated. In addition,
certain changes that would be materially adverse to the rights of holders of
the Series E Preferred Stock and voting parity stock cannot be made without
the affirmative vote of two-thirds of the shares of Series E Preferred Stock
and voting parity stock, voting as a single class, entitled to be cast
thereon.
The Series E Preferred Stock is not redeemable prior to December 1,
1996. On and after such date, the Series E Preferred Stock is redeemable at
the option of the Company, in whole or in part, initially for $52.10 per
share and thereafter at prices declining ratably annually on each December 1
to $50.00 per share on and after December 1, 2003.
Series D Preferred Stock
In July 1993, the Company issued 2.0 million shares of 5-5/8%
Cumulative Convertible Preferred Stock, Series D, $.01 par value (the
"Series D Preferred Stock"). Holders of the Series D Preferred Stock are
entitled to receive, when, as, and if declared by the Company's Board of
Directors out of funds legally available therefore, cumulative cash
dividends at the rate of 5-5/8% per annum (an amount equivalent to $2.8125
per annum per share), payable quarterly in arrears. In the event of any
voluntary or involuntary liquidation, dissolution or winding up of the
Company, the holders of the Series D Preferred Stock will be entitled to
receive distributions in the amount of $50.00 per share, plus all accrued
and unpaid dividends. Each share of Series D Preferred Stock is
convertible, in whole or in part, at any time, unless previously redeemed,
into 3.448 shares of Common Stock (equivalent to a conversion price of
$14.50 per share of Common Stock). The conversion rate is subject to
adjustment upon the occurrence of certain events.
The Series D Preferred Stock ranks junior to all outstanding debt of
the Company. With respect to the payment of dividends and amounts upon
liquidation, dissolution or winding up, the Series D Preferred Stock ranks
on a parity with the Company's Series E Preferred Stock and senior to the
Common Stock and the Series C Preferred Stock.
Whenever dividends on the Series D Preferred Stock are in arrears for
six quarterly dividend periods, holders of the Series D Preferred Stock
(voting separately as a class together with holders of shares of the
Company's Series E Preferred Stock and any other class or series of equity
securities ranking on a parity with the Series D Preferred Stock) will have
the right to elect two additional directors to serve on the Company's Board
of Directors until such dividend arrearage is eliminated. In addition,
certain changes that would be materially adverse to the rights of holders of
the Series D Preferred Stock and voting parity stock cannot be made without
the affirmative vote of two-thirds of the shares of Series D Preferred Stock
and voting parity stock, voting as a single class, entitled to be cast
thereon.
The Series D Preferred Stock is not redeemable prior to July 20, 1996.
On and after such date, the Series D Preferred Stock is redeemable at the
option of the Company, in whole or in part, initially for $51.969 per share
and thereafter at prices declining ratably annually on each July 20 to
$50.00 per share on and after July 20, 2003.
Reserved but Unissued Series C Convertible Preferred Stock
The Company has reserved 5,112,765 shares of Series C Convertible
Preferred Stock, $.01 par value per share (the "Series C Preferred Stock"),
for issuance upon exercise of outstanding warrants if, for any reason, it is
unable to issue Common Stock to satisfy applicable exercise requirements.
No Series C Preferred Stock is outstanding and the Company is not presently
aware of any reason that would require it to issue such stock or preclude it
from issuing Common Stock.
The Series C Preferred Stock ranks, with respect to the payment of
dividends and the distribution of assets, junior to all series of Preferred
Stock. Subject to the rights of a superior series of preferred stock, each
share of Series C Preferred Stock is entitled to receive, when, as, and if
declared by the Board of Directors out of funds legally available for that
purpose, dividends payable in cash in an amount per share equal to the
aggregate per share amount of all cash dividends, and the aggregate per
share amount of all non-cash dividends or other distributions, other than a
dividend payable in shares of Common Stock, declared on the Common Stock.
Each share of Series C Preferred Stock is entitled to such number of
votes as each share of Common Stock and, except as otherwise required by
law, will vote together with the Common Stock as a single class. Each share
of Series C Preferred Stock is convertible at any time into one share of
fully paid and non-assessable Common Stock.
If the Company declares any dividend on the Common Stock payable in
shares of Common Stock, or effects a subdivision or combination or
consolidation of the outstanding shares of Common Stock into a greater or
lesser number of shares of Common Stock, then the dividends and the number
of votes per share to which holders of shares of Series C Preferred Stock
are entitled to will be adjusted by multiplying the amount or number the
holders were previously entitled to by a fraction, the numerator of which is
the number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event.
The holders of Series C Preferred Stock have no preemptive rights and
are not subject to redemption. In the event of liquidation, dissolution, or
winding up of the Company, prior to distribution to the holders of shares of
stock ranking junior to the Series C Preferred Stock, the holders of Series
C Preferred Stock are entitled to $.10 per share plus an amount equal to any
unpaid dividends and distributions on the Series C Preferred Stock, provided
that the holders of Series C Preferred Stock shall be entitled to receive an
aggregate amount per share, subject to certain adjustments, equal to the
aggregate amount to be distributed per share to holders of shares of Common
Stock.
DESCRIPTION OF DEPOSITARY SHARES
The description set forth below and in any Prospectus Supplement of
certain provisions of the Deposit Agreement (as defined below) and of the
Depositary Shares and Depositary Receipts does not purport to be complete
and is subject to and qualified in its entirety by reference to the forms of
Deposit Agreement and Depositary Receipts relating to each series of the
Preferred Stock which have been or will be filed with the Commission at or
prior to the time of the offering of such series of the Preferred Stock.
General
The Company may, at its option, elect to offer fractional interests in
shares of Preferred Stock, rather than shares of Preferred Stock. In the
event such option is exercised, the Company will provide for the issuance by
a Depositary to the public of receipts for Depositary Shares, each of which
will represent a fractional interest (to be set forth in the Prospectus
Supplement relating to a particular series of the Preferred Stock which will
be filed with the Commission at or prior to the time of the offering of such
series of the Preferred Stock as described below).
The shares of any series of the Preferred Stock underlying the
Depositary Shares will be deposited under a separate Deposit Agreement (the
"Deposit Agreement") between the Company and a bank or trust company
selected by the Company having its principal office in the United States and
having a combined capital and surplus of at least $50,000,000 (the
"Depositary"). The Prospectus Supplement relating to a series of Depositary
Shares will set forth the name and address of the Depositary. Subject to
the terms of the Deposit Agreement, each owner of a Depositary Share will be
entitled, in proportion to the applicable fractional interest in a share of
Preferred Stock underlying such Depositary Shares, to all the rights and
preferences of the Preferred Stock underlying such Depositary Share
(including dividend, voting, redemption, conversion and liquidation rights).
The Depositary Shares will be evidenced by Depositary Receipts issued
pursuant to the Deposit Agreement.
Pending the preparation of definitive engraved Depositary Receipts, the
Depositary may, upon the written order of the Company, issue temporary
Depositary Receipts substantially identical to (and entitling the holders
thereof to all the rights pertaining to) the definitive Depositary Receipts
but not in definitive form. Definitive Depositary Receipts will be prepared
thereafter without unreasonable delay, and temporary Depositary Receipts
will be exchangeable for definitive Depositary Receipts at the Company's
expense.
Upon surrender of Depositary Receipts at the office of the Depositary
and upon payment of the charges provided in the Deposit Agreement and
subject to the terms thereof, a holder of Depositary Shares is entitled to
have the Depositary deliver to such holder the whole shares of Preferred
Stock underlying the Depositary Shares evidenced by the surrendered
Depositary Receipts.
Dividends and Other Distributions
The 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 on the
relevant record date. The Depositary shall distribute only such amount,
however, as can be distributed without attributing to any holder of
Depositary Shares a fraction of one cent, and any balance not so distributed
shall be added to and treated as part of the next sum received by the
Depositary for distribution to record holders of Depositary Shares.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of Depositary
Shares entitled thereto, unless the Depositary determines that it is not
feasible to make such distribution, in which case the Depositary may, with
the approval of the Company, sell such property and distribute the net
proceeds from such sale to such holders.
The Deposit Agreement will also contain provisions relating to the
manner in which any subscription or similar rights offered by the Company to
holders of the Preferred Stock shall be made available to holders of
Depositary Shares.
Redemption of Depositary Shares
If a series of the Preferred Stock underlying the Depositary Shares is
subject to redemption, the Depositary Shares will be redeemed from the
proceeds received by the Depositary resulting from the redemption, in whole
or in part, of such series of the Preferred Stock held by the Depositary.
The Depositary shall mail notice of redemption not less than 30 and not more
than 60 days prior to the date fixed for redemption to the record holders of
the Depositary Shares to be so redeemed at their respective addresses
appearing in the Depositary's books. 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 Depositary, the
Depositary will redeem as of the same redemption date the number of
Depositary Shares relating to shares of Preferred Stock so redeemed. If
less than all of the Depositary Shares are to be redeemed, the Depositary
Shares to be redeemed will be selected by lot or pro rata as may be
determined by the Depositary.
After the date fixed for redemption, the Depositary Shares so called
for redemption will no longer be deemed to be outstanding and all rights of
the holders of the Depositary Shares will cease, except the right to receive
the moneys payable upon such redemption and any money or other property to
which the holders of such Depositary Shares were entitled upon such
redemption upon surrender to the Depositary of the Depositary Receipts
evidencing such Depositary Shares.
Voting the Preferred Stock
Upon receipt of notice of any meeting at which the holders of the
Preferred Stock are entitled to vote, the Depositary will mail the
information contained in 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
Depositary as to the exercise of the voting rights pertaining to the number
of shares of Preferred Stock underlying such holder's Depositary Shares.
The Depositary will endeavor, insofar as practicable, to vote the number of
shares of Preferred Stock underlying such Depositary Shares in accordance
with such instructions, and the Company will agree to take all action which
may be deemed necessary by the Depositary in order to enable the Depositary
to do so. To the extent the Depositary does not receive specific
instructions from the holders of Depositary Shares relating to such
Preferred Stock, it will vote shares of Preferred Stock in accordance with
the recommendation of the Company, unless otherwise indicated in the
Prospectus Supplement.
Amendment and Termination of Depositary Agreement
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may at any time be amended by agreement
between the Company and the Depositary. However, any amendment which
materially and adversely alters the rights of the existing holders of
Depositary Shares will not be effective unless such amendment has been
approved by the record holders of at least a majority of the Depositary
Shares then outstanding. A Deposit Agreement may be terminated by the
Company or the Depositary only if (i) all outstanding Depositary Shares
relating thereto have been redeemed or (ii) there has been a final
distribution in respect of the Preferred Stock of the relevant series in
connection with any liquidation, dissolution or winding up of the Company
and such distribution has been distributed to the holders of the related
Depositary Shares.
Charges of Depositary
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 Depositary in connection with the
initial deposit of the Preferred Stock and any redemption of the Preferred
Stock. Holders of Depositary Shares 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.
Miscellaneous
The Depositary will forward to the holders of Depositary Shares all
reports and communications from the Company which are delivered to the
Depositary and which the Company is required to furnish to the holders of
the Preferred Stock.
Neither the Depositary nor the Company will be liable if it is
prevented or delayed by law or any circumstance beyond its control in
performing its obligations under the Deposit Agreement. The obligations of
the Company and the Depositary under the Deposit Agreement will be limited
to performance in good faith of their duties thereunder and they will not be
obligated to prosecute or defend any legal proceeding in respect of any
Depositary Shares or Preferred Stock unless satisfactory indemnity is
furnished. They may rely upon written advice of counsel or accountants, or
information provided by persons presenting Preferred Stock for deposit,
holders of Depositary Shares or other persons believed to be competent and
on documents believed to be genuine.
Resignation and Removal of Depositary
The Depositary may resign at any time by delivering to the Company
notice of its election to do so, and the Company may at any time remove the
Depositary, any such resignation or removal to take effect upon the
appointment of a successor Depositary and its acceptance of such
appointment. Such successor Depositary must be appointed within 60 days
after delivery of the notice of resignation or removal and must be a bank or
trust company having its principal office in the United States and having a
combined capital and surplus of at least $50,000,000.
DESCRIPTION OF COMMON STOCK
The Company's Certificate of Incorporation authorizes the issuance of
100,000,000 shares of common stock, $.01 par value per share ("Common
Stock").
The holders of Common Stock are entitled to receive dividends when and
as declared by the Board of Directors of the Company out of funds legally
available therefor, provided that if any shares of preferred stock are at
the time outstanding, the payment of dividends on Common Stock or other
distributions (including purchases of Common Stock) may be subject to the
declaration and payment of full cumulative dividends, and the absence of
arrearages in any mandatory sinking fund, on outstanding shares of preferred
stock.
The holders of Common Stock are entitled to one vote for each share on
all matters voted on by stockholders, including elections of directors. The
holders of Common Stock do not have any conversion, redemption or preemptive
rights. In the event of the dissolution, liquidation or winding up of the
Company, holders of Common Stock are entitled to share ratably in any assets
remaining after the satisfaction in full of the prior rights of creditors,
including holders of the Company's indebtedness, and the aggregate
liquidation preference of any preferred stock then outstanding.
All outstanding shares of Common Stock are, and the shares offered
hereby, upon issuance, will be, fully paid and non-assessable.
Certain provisions of the Company's Certificate of Incorporation and
Bylaws may be considered as having an anti-takeover effect. Such provisions
empower the Board of Directors to fix the rights and preferences of and to
issue shares of preferred stock; limit certain substantial stockholders of
the Company from significantly increasing their interest in the stock or
assets of the Company without the consent of the Board of Directors and/or a
supermajority of the stockholders of the Company; prohibit stockholders of
the Company from calling a special meeting; place restrictions on the
ability of stockholders to nominate persons for the position of director;
and require that the Board of Directors be divided into three classes. In
addition, certain provisions of law may have the effect of protecting the
Company against undesired takeover attempts. Specifically, under Delaware
law (and a similar provision of the Company's Certificate of Incorporation),
in certain instances, significant holders (as specified) of the Company's
voting stock may not, without approval of a specified vote of the other
stockholders, or approval of the Company's Board of Directors (or the
independent members thereof) prior to becoming a significant holder, acquire
additional interests in the Company's assets or capital stock.
The transfer agent for the Common Stock is Mellon Financial Services,
whose address is 111 Founders Plaza, 11th Floor, East Hartford, Connecticut
06108.
DESCRIPTION OF WARRANTS
General
The Company may issue Warrants, including Warrants to purchase Debt
Securities ("Debt Warrants"), as well as other types of Warrants. Warrants
may be issued independently of or together with any other Securities and may
be attached to or separate from such Securities. Each series of Warrants
will be issued under a separate warrant agreement (each a "Warrant
Agreement") to be entered into between the Company and a warrant agent
("Warrant Agent"). The Warrant Agent will act solely as an agent of the
Company in connection with the 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 Warrants. The following sets forth certain general
terms and provisions of the Warrants offered hereby. Further terms of the
Warrants and the applicable Warrant Agreement are set forth in the
applicable Prospectus Supplement.
Debt Warrants
The applicable Prospectus Supplement will describe the following terms
of the Debt Warrants in respect of which this Prospectus is being delivered:
(1) the title of such Debt Warrants; (2) the aggregate number of such Debt
Warrants; (3) the price or prices at which such Debt Warrants will be
issued; (4) the currency or currencies, including composite currencies, in
which the price of such Debt Warrants may be payable; (5) the designation,
aggregate principal amount and terms of the Debt Securities purchasable upon
exercise of such Debt Warrants; (6) if applicable, the designation and terms
of the Debt Securities with which such Debt Warrants are issued and the
number of such Debt Warrants issued with each such Debt Security; (7) the
currency or currencies, including composite currencies, in which the
principal of or any premium or interest on the Debt Securities purchasable
upon exercise of such Debt Warrant will be payable; (8) if applicable, the
date on and after which such Debt Warrants and any related Debt Securities
will be separately transferable; (9) the price at which and currency or
currencies, including composite currencies, in which the Debt Securities
purchasable upon exercise of such Debt Warrants may be purchased; (10) the
date on which the right to exercise such Debt Warrants shall commence and
the date on which such right shall expire; (11) if applicable, the minimum
or maximum amount of such Debt Warrants which may be exercised at any one
time; (12) information with respect to book-entry procedures, if any; (13)
if applicable, a discussion of certain United States Federal income tax
considerations; and (14) any other terms of such Debt Warrants, including
terms, procedures and limitations relating to the exchange and exercise of
such Debt Warrants.
Other Warrants
The Company may issue other Warrants. The applicable Prospectus
Supplement will describe the following terms of any such other Warrants in
respect of which this Prospectus is being delivered: (1) the title of such
Warrants; (2) the securities (which may include Preferred Stock or Common
Stock) for which such Warrants are exercisable; (3) the price or prices at
which such Warrants will be issued; (4) the currency or currencies,
including composite currencies, in which the price of such Warrants may be
payable; (5) if applicable, the designation and terms of the Debt Securities
or Preferred Stock with which such Warrants are issued and the number of
such Warrants issued with each such Debt Security or share of Preferred
Stock; (6) if applicable, the date on and after which such Warrants and the
related Debt Securities or Preferred Stock will be separately transferable;
(7) if applicable, a discussion of certain United States Federal income tax
considerations; and (8) any other terms of such Warrants, including terms,
procedures and limitations relating to the exchange and exercise of such
Warrants.
PLAN OF DISTRIBUTION
The Company may sell the Securities (and, in the case of Preferred
Stock, Depositary Shares representing fractional interests therein) to one
or more underwriters for public offering and sale by them or may sell the
Securities (or Depositary Shares) to investors directly or through agents.
Any such underwriter or agent involved in the offer and sale of the
Securities (or Depositary Shares) will be named in the applicable Prospectus
Supplement. The Company has reserved the right to sell the Securities (or
Depositary Shares) directly to investors on its own behalf in those
jurisdictions where it is authorized to do so.
Underwriters may offer and sell the Securities (or Depositary Shares)
at a fixed price or prices that may be changed, at market prices prevailing
at the time of sale, at prices related to such prevailing market prices or
at negotiated prices. The Company also may offer and sell the Securities
(or Depositary Shares) in exchange for one or more of its outstanding series
of equity or debt securities (including any outstanding Securities). The
Company also may, from time to time, authorize dealers, acting as the
Company's agents, to offer and sell the Securities (or Depositary Shares)
upon such terms and conditions as set forth in the applicable Prospectus
Supplement. In connection with the sale of the Securities (or Depositary
Shares), underwriters may receive compensation from the Company in the form
of underwriting discounts or commissions and may also receive commissions
from purchasers of the Securities (or Depositary Shares) for whom they may
act as agent. Underwriters may sell the Securities (or Depositary Shares)
to or through dealers, and such dealers may receive compensation in the form
of discounts, concessions or commissions from the underwriters and/or
commissions from the purchasers for whom they may act as agents.
Any underwriting compensation paid by the Company to underwriters or
agents in connection with the offering of the Securities (or Depositary
Shares), and any discounts, concessions or commissions allowed by
underwriters to participating dealers, will be set forth in the applicable
Prospectus Supplement. Dealers and agents participating in the distribution
of the Securities (or Depositary Shares) may be deemed to be underwriters,
and any discounts and commissions received by them and any profit realized
by them on resale of the Securities (or Depositary Shares) may be deemed to
be underwriting discounts and commissions. Underwriters, dealers and agents
may be entitled, under agreements entered into with the Company, to
indemnification against and contribution toward certain civil liabilities.
If so indicated in the applicable Prospectus Supplement, the Company
will authorize dealers acting as the Company's agents to solicit agreements
by certain institutions to purchase the Securities (or Depositary Shares)
from the Company at the public offering price set forth in the applicable
Prospectus Supplement pursuant to delayed delivery contracts ("Contracts")
providing for payment and delivery on the date or dates stated in a
Prospectus Supplement. Each Contract will be for an amount not less than,
and the aggregate amount of the Securities (or Depositary Shares), based on
the liquidation value thereof, sold pursuant to Contracts will be not less
nor more than the respective amounts stated in a Prospectus Supplement.
Institutions with whom 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 be subject to the condition that the purchase by an institution of the
Securities (or Depositary Shares) covered by Contracts will not at the time
of delivery be prohibited under the laws of any jurisdiction in the United
States to which such institution is subject.
Any Securities issued hereunder (other than Common Stock) will be new
issues of securities with no established trading market. Any underwriters
or agents to or through whom such Securities are sold by the Company for
public offering and sale may make a market in such Securities, but such
underwriters or agents will not be obligated to do so and may discontinue
any market at any time without notice. No assurance can be given as to the
liquidity of the trading market for any Securities.
Certain of the underwriters, dealers or agents and their associates may
be customers of, engage in transactions with, and perform services for, the
Company and certain of its affiliates in the ordinary course of business.
EXPERTS
The consolidated balance sheets as of December 31, 1994 and 1993, and
the consolidated statements of operations, changes in stockholders' equity
and cash flows and the related schedules for each of the three years in the
period ended December 31, 1994, incorporated into this Prospectus and
elsewhere in the Registration Statement, 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.
With respect to the unaudited interim financial information for the
quarters ended March 31, 1995 and 1994, Arthur Andersen LLP has applied
limited procedures in accordance with professional standards for review of
that information. However, their separate report thereon states that they
did not audit and they do not express an opinion on that interim financial
information. Accordingly, the degree of reliance on their report on that
information should be restricted in light of the limited nature of the
review procedures applied. In addition, the accountants are not subject to
the liability provisions of Section 11 of the Securities Act of 1933 for
their report on the unaudtited interim financial information because that
report is not a "report" or a "part" of the registration statement prepared
or certified by the accountants within the meaning of Sections 7 and 11 of
the Act.
VALIDITY OF THE SECURITIES
The validity of the Securities will be passed upon for the Company by
Snell & Wilmer L.L.P., One Arizona Center, Phoenix, Arizona 85004, counsel
to the Company, and for any underwriters by the counsel named in the
applicable Prospectus Supplement.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The estimated expenses in connection with the issuance and distribution
of the securities being registered, other than Underwriting Compensation,
are as follows:
SEC registration fee . . . . . . . . . . . $ 68,966
Printing and engraving expenses . . . . . . $ 100,000
Legal fees and disbursements . . . . . . . $ 120,000
Accounting fees and disbursements . . . . . $ 50,000
Trustee's fees and disbursements . . . . . $ 25,000
Blue Sky fees and expenses . . . . . . . . $ 25,000
Miscellaneous (including transfer
agent, listing and rating agency fees) . $ 100,000
---------
$ 488,966
=========
Item 15. Indemnification of Directors and Officers.
The Certificate of Incorporation provides that the directors of the
Company shall be under no liability to the Company for monetary damages for
breach of fiduciary duty as a director of the Company except for those
specific breaches and acts or omissions with respect to which the Delaware
General Corporation Law (the "Delaware Law") expressly provides that a
corporation's certificate of incorporation shall not eliminate or limit such
personal liability of directors. Section 102(b)(7) of the Delaware Law
provides that a corporation's certificate of incorporation may not limit the
liability of directors for (i) breaches of their duty of loyalty to the
corporation and its stockholders, (ii) acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, (iii)
transactions from which a director derives improper personal benefit and
(iv) unlawful dividends or unlawful stock repurchases under Section 174 of
the Delaware Law.
Under the Delaware Law, directors and officers as well as other
employees and individuals, may be indemnified against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement in
connection with specified actions, suits or proceedings, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation, a "derivative action"), if they acted in good
faith and in a manner they reasonably believed to be in or not opposed to
the best interest of the Company and, with respect to any criminal action or
proceeding, had no reasonable cause to believe their conduct was unlawful.
A similar standard of care is applicable in the case of a derivative action,
except that indemnification only extends to expenses (including attorneys'
fees) incurred in connection with defense or settlement of such an action
and the Delaware Law requires court approval before there can be any
indemnification where the person seeking indemnification has been found
liable to the Company. The Company's By-laws provide that each person who
was or is made a party to, or is involved in, any action, suit or proceeding
by reason of fact that he or she is or was a director, officer or employee
of the Company (or was serving at the request of the Company as a director,
officer, employee or agent for another entity) will be indemnified and held
harmless by the Company to the full extent authorized by the Delaware Law,
against all expense, liability or loss (including attorneys' fees,
judgments, fines or penalties and amounts to be paid in settlement)
reasonably incurred by such person in connection therewith. The Company's
By-laws provide that rights conferred thereby are contract rights and will
include the right to be paid by the Company for the expenses incurred in
defending the proceedings specified above, in advance of their final
disposition, except that, if the Delaware Law so requires, such payment will
only be made upon delivery to the Company by the indemnified party of an
undertaking to repay all amounts so advanced if it is ultimately determined
that the person receiving such payments is not entitled to be indemnified
under such provision or otherwise. The Company's By-laws provide that
persons indemnified thereunder may bring suit against the Company to recover
unpaid amounts claimed thereunder, and that if such suit is successful, the
expense of bringing such a suit will be reimbursed by the Company.
<PAGE>
Item 16. Exhibits.
Exhibit Page or Method
Number Description of Filing
--------- ----------- ---------------
1.1 Form of Underwriting Agreement (for (1)
equity securities)
1.2 Form of Underwriting Agreement (for (1)
debt securities)
4.1 Form of Certificate of Designations (1)
with respect to Preferred Stock
4.2 Form of specimen certificate (1)
representing shares of Preferred
Stock
4.3 Specimen certificate representing
shares of Common Stock (2)
4.4 Form of Deposit Agreement (1)
4.5 Form of Depositary Receipt (1)
4.6 Form of Indenture for Senior Debt (3)
Securities
4.7 Form of Senior Debt Security (3)
4.8 Form of Indenture for Senior (4)
Subordinated Debt Securities
4.9 Form of Senior Subordinated Debt (5)
Security
4.10 Form of Indenture for Subordinated Debt (3)
Securities
4.11 Form of Subordinated Debt Security (3)
4.12 Form of Preferred Stock Warrant (1)
Agreement
4.13 Form of Preferred Stock Warrant (1)
Certificate
4.14 Form of Common Stock Warrant Agreement (1)
4.15 Form of Common Stock Warrant (1)
Certificate
4.16 Form of Debt Warrant Agreement (6)
4.17 Form of Debt Warrant Certificate (6)
5.1 Opinion of Snell & Wilmer L.L.P. Filed Herewith
12.1 Statement Regarding Computation of
Consolidated Ratios of Earnings to Filed Herewith
Fixed Charges
12.2 Statement Regarding Computation of Filed Herewith
Earnings to Combined Fixed Charges
and Preferred Stock Dividend
Requirements
15.0 Letter re unaudited interim financial Filed Herewith
information
23.0 Consent of Arthur Andersen LLP Filed Herewith
23.2 Consent of Snell & Wilmer L.L.P. Included in its opinion
filed as Exhibit 5.1
24.1 Powers of Attorney Included on signature
page
25.1 Form T-1 Statement of Eligibility under Filed Herewith
the Trust Indenture Act of 1939 of
State Street Bank and Trust Company
25.2 Form T-1 Statement of Eligibility under Filed Herewith
the Trust Indenture Act of 1939 of
Chemical Trust Company of California
_______________
(1) Incorporated by reference to the corresponding Exhibit to the
Registrant's Form S-3 (Registration No. 33-64030) filed on June 8, 1993.
(2) Incorporated by reference to Exhibit 2 to the Registrant's Form 8-A dated
October 30, 1992.
(3) Incorporated by reference to the corresponding Exhibit to the
Registrant's Form S-3 (Registation No. 33-53021) initally filed
on April 7, 1994.
(4) Incorporated by reference to Exhibit 99.1 to the Registrant's Current
Report on Form 8-K filed on May 24, 1995 (the "May 1995 Form 8-K").
(5) Incorporated by reference to Exhibit 99.3 to the May 1995 Form 8-K.
(6) Incorporated by reference to the corresponding Exhibit to Amendment No. 1
to the Registrant's Form S-3 (Registration No. 33-64050) filed on June 25,
1993
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate,
represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high end
of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20%
change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the
effective registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the registration statement or any material change to
such information in the registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant pursuant to Section 13
or 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed
as part of this registration statement in reliance upon Rule 430A
and contained in a form of prospectus filed by the registrant
pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities
Act of 1933 shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to section 13(a) or section 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing of
an employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
The undersigned registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) of section 310 of the Trust Indenture Act of 1939 in
accordance with the rules and regulations prescribed by the Commission under
section 305(b)(2) of the Trust Indenture Act of 1939.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Magma
Copper Company certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused
this Registration Statement on Form S-3 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Tucson and State of
Arizona on June 22, 1995.
MAGMA COPPER COMPANY,
a Delaware corporation
By /s/ J. Burgess Winter
-----------------------------------------
J. Burgess Winter
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Donald J. Donahue, J. Burgess
Winter, Douglas J. Purdom and Andrew A. Brodkey, and each of them, his
true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments to
this Form S-3 Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith with the
Securities and Exchange Commission, granting unto said attorneys-in-
fact and agents, and each of them, full power and authority to do and
perform each and every act and thing requisite and necessary to be done
in and about the premises, as fully and to all intents and purposes as
he might or could do in person hereby ratifying and confirming all that
said attorneys-in-fact and agents, or his substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons
in the capacities and on the date indicated.
Signature Title Date
--------- ----- ----
/s/ Donald J. Donahue Chairman of the Board and June 22, 1995
- --------------------------- Director (for all signatures)
Donald J. Donahue
/s/ J. Burgess Winter President, Chief
- --------------------------- Executive Officer,
J. Burgess Winter Director (Principal
Executive Officer)
/s/ Douglas J. Purdom Vice President and Chief
- --------------------------- Financial Officer
Douglas J. Purdom (Principal Financial and
Accounting Officer)
/s/ Christopher W. Brody Director
- ---------------------------
Christopher W. Brody
/s/ Judd R. Cool Director
- ---------------------------
Judd R. Cool
/s/ John W. Goth Director
- ---------------------------
John W. Goth
/s/ John R. Kennedy Director
- ---------------------------
John R. Kennedy
/s/ Thomas W. Rollins Director
- ---------------------------
Thomas W. Rollins
/s/ Henry B. Sargent Director
- ---------------------------
Henry B. Sargent
/s/ Simon D. Strauss Director
- ---------------------------
Simon D. Strauss
/s/ H. Wilson Sundt Director
- ---------------------------
H. Wilson Sundt
/s/ John L. Vogelstein Director
- ---------------------------
John L. Vogelstein
EXHIBIT 5.1
June 22, 1995
Magma Copper Company
7400 N. Oracle Road
Suite 200
Tucson, Arizona 85704
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
At your request, we have examined the Registration Statement on Form S-
3 (the "Registration Statement") relating to the registration and sale from
time to time by you of up to an aggregate of $200,000,000 of (i) debt
securities ("Debt Securities"), consisting of debentures, notes and/or other
unsecured evidences of indebtedness in one or more series, (ii) shares of
preferred stock, $.01 par value per share ("Preferred Stock"), in one or
more series, (iii) depositary shares representing fractional interests in
the Preferred Stock (the "Depositary Shares"), (iv) shares of common stock,
$.01 par value per share ("Common Stock"), or (v) warrants ("Warrants") to
purchase Debt Securities, Preferred Stock, Depositary Shares or Common Stock
(Debt Securities, Preferred Stock, Depositary Shares, Common Stock and
Warrants are collectively referred to as the "Securities"), and such
corporate records, certificates and other documents and such questions of
law as we have considered necessary or appropriate for the purposes of this
opinion. Capitalized terms used but not otherwise defined herein shall have
the meanings ascribed to them in the Registration Statement.
Based upon the foregoing, we advise you that in our opinion, when the
following events have occurred:
(a) The Registration Statement has become effective under the
Securities Act of 1933, as amended;
(b) The due authorization, approval and filing by you of the
Certificate of Designation(s) setting forth the terms of the Preferred
Stock;
(c) The due authorization, execution and delivery of the
Depositary Agreement pursuant to which the Depositary Shares are to be
issued;
(d) The due authorization, execution and delivery of the Warrant
Agreement pursuant to which the Warrants are to be issued;
(e) The due authorization, execution and delivery of the
Indenture pursuant to which Debt Securities are to be issued, and the
qualification of such Indenture under the Trust Indenture Act of 1939, as
amended;
(f) The due execution, registration and delivery of the
certificate or certificates evidencing the Securities; and
(g) The Securities have been established, issued and sold in the
manner specified in the Registration Statement and the exhibits thereto, in
accordance with corporate and governmental authorities and not in violation
of any applicable law, agreement or instrument; then
1. The Preferred Stock to be issued by you, including the
Preferred Stock represented by the Depositary Shares and the Preferred Stock
issued upon exercise of any Warrants issued under the Registration
Statement, will be legally issued, fully paid and non-assessable;
2. The Depositary Shares to be issued by you will be legally
issued, fully paid and non-assessable;
3. The Common Stock to be issued by you, including any Common
Stock that may be issuable pursuant to the conversion of any Preferred Stock
or Debt Securities or upon the exercise of any Warrants, will be legally
issued, fully paid and non-assessable;
4. The Debt Securities to be issued by you, including Debt
Securities issued upon exercise of any Warrants issued under the
Registration Statement, will be legally issued and binding obligations upon
you, subject to the effect of (a) applicable reorganization or similar laws
and court decisions affecting creditors' rights and remedies generally and
(b) the application of general principles of equity (whether such
enforceability is considered in a proceeding in equity or at law); and
5. The Warrants to be issued by you will be legally issued, and
binding obligations upon you, subject to the effect of (a) applicable
reorganization or similar laws and court decisions affecting creditors'
rights and remedies generally and (b) the application of general principles
of equity (whether such enforceability is considered in a proceeding in
equity or at law).
You have informed us that you intend to issue the Securities from time
to time on a delayed or continuous basis. Accordingly, this opinion is
limited to the laws, including the rules and regulations, as in effect on
the date hereof. We understand that prior to issuing any Securities you
will advise us in writing of the terms thereof, will afford us an
opportunity to review the operative documents pursuant to which such
Securities are to be issued (including the applicable Prospectus Supplement)
and will file such supplement or amendment to this opinion (if any) as we
may reasonably consider necessary or appropriate by reason of the terms of
such Securities.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement, and we further consent to the use of our name under
the caption "Validity of the Securities" in the Registration Statement and
in the Prospectus and the form of Prospectus Supplement.
Very truly yours,
SNELL & WILMER L.L.P.
<TABLE>
<CAPTION>
FIXED CHARGE RATIOS
(dollar amounts in thousands)
For the three
For the Years Ended Months Ended
December 31, March 31,
------------------- -------------
1990 1991 1992 1993 1994 '94 '95
---- ---- ---- ---- ---- ----- -----
<S> <C> <C> <C> <C> <C> <C> <C>
Fixed Charges:
Interest Charges:
Expensed ............................ $ 55,105 $ 50,048 $ 45,020 $ 34,663 $ 24,598 $ 5,861 $ 5,233
Capitalized ......................... -- -- -- 7,786 17,714 4,755 5,804
-------- -------- -------- -------- -------- -------- --------
Total Interest Charges ................ 55,105 50,048 45,020 42,449 42,312 10,616 11,037
Ammortization of Debt Expense ........... 2,932 3,118 255 363 446 105 127
Write-off of Loan Costs ................. -- 13,123 -- -- -- -- --
Rental Expense Considered Interest ...... 854 1,568 1,739 1,954 1,906 469 496
Preferred Stock Dividends................ -- -- -- -- -- -- --
Guarantees of other Debt ................ -- -- -- -- -- -- --
-------- -------- -------- -------- -------- -------- --------
Total Fixed Charges(A) ................ 58,891 67,857 47,014 44,766 44,664 11,190 11,660
Fixed Charges Added to Income:
Fixed Charges ......................... 58,891 67,857 47,014 44,766 44,664 11,190 11,660
Write-off of Loan Costs ............... -- -- -- -- -- -- --
Capitalized Interest Amortization ..... 702 1,050 639 572 796 175 226
Less Capitalized Interest ............. -- -- -- (7,786) (17,714) (4,755) (5,804)
-------- -------- -------- -------- -------- -------- --------
Total Fixed Charges Added
to Income ......................... 59,593 68,907 47,653 37,552 27,746 6,610 6,082
Pre-tax Income (excluding
$14 million SFAS 106) ............. 108,673 (168,528) 80,900 31,511 109,760 10,427 68,611
Earnings(B) ............................. 168,266 (99,621) 128,553 69,063 137,506 17,037 74,693
Ratio of Earnings to Fixed
Charges(B)/(A) .................... 2.9 -- 2.7 1.5 3.1 1.5 6.4
Earnings Deficiency ..................... $ -- $(167,478) $ -- $ -- $ -- $ -- $ --
</TABLE>
<TABLE>
<CAPTION>
FIXED CHARGE RATIOS WITH PREFERRED DIVIDENDS
(dollar amounts in thousands)
For the three
For the Years Ended Months Ended
December 31, March 31,
------------------- -------------
1990 1991 1992 1993 1994 '94 '95
---- ---- ---- ---- ---- ----- -----
<S> <C> <C> <C> <C> <C> <C> <C>
Fixed Charges:
Interest Charges:
Expensed ...................... $ 55,105 $ 50,048 $ 45,020 $ 34,663 $ 24,598 $ 5,861 $ 5,233
Capitalized ................... -- -- -- 7,786 17,714 4,755 5,804
-------- -------- -------- -------- -------- -------- --------
Total Interest Charges .......... 55,105 50,048 45,020 42,449 42,312 10,616 11,037
Ammortization of Debt Expense ..... 2,932 3,118 255 363 446 105 127
Write-off of Loan Costs ........... -- 13,123 -- -- -- -- --
Rental Expense Considered Interest 854 1,568 1,739 1,954 1,906 469 496
Preferred Stock Dividends.......... 8,511 12,367 17,514 3,504 14,530 3,981 3,875
Guarantees of Other Debt .......... -- -- -- -- -- -- --
-------- -------- -------- -------- -------- -------- --------
Total Fixed Charges(A) .......... 67,402 80,224 64,528 48,270 59,194 15,171 15,535
Fixed Charges Added to Income:
Fixed Charges ................... 67,402 80,224 64,528 48,270 59,194 15,171 15,535
Write-off of Loan Costs ......... -- -- -- -- -- -- --
Capitalized Interest Amortization 702 1,050 639 572 796 175 226
Less: Preferred Stock Dividends . (8,511) (12,367) (17,514) (3,504) (14,530) (3,981) (3,875)
Capitalized Interest .... -- -- -- (7,786) (17,714) (4,755) (5,804)
-------- -------- -------- -------- -------- -------- --------
Total Fixed Charges Added
to Income ................... 59,593 68,907 47,653 37,552 27,746 6,610 6,082
Pre-tax Income (Loss) ............. 108,673 (168,528) 80,900 31,511 109,760 10,427 68,611
Earnings(B) ....................... 168,266 (99,621) 128,553 69,063 137,506 17,037 74,693
Ratio of Earnings to Fixed
Charges(B)/(A) .............. 2.5 -- 2.0 1.4 2.3 1.1 4.8
Earnings Deficiency ............... $ -- $(179,845) $ -- $ -- -- -- --
</TABLE>
June 12, 1995
To Magma Copper Company:
We are aware that Magma Copper Company will incorporate by reference in its
Form S-3 Registration Statement, to be filed on or about June 22, 1995 its
Form 10-Q for the quarter ended March 31, 1995, which includes our report
dated April 14, 1995 covering the unaudited interim financial information
contained therein. Pursuant to Regulation C of the Securities Act of 1933,
(the Act) that report is not considered a part of the Registration Statement
prepared or certified by our firm or a report prepared or certified by our
firm within the meaning of Sections 7 and 11 of the Act.
Very truly yours,
ARTHUR ANDERSEN LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Form S-3 Registration Statement for Magma Copper Company,
of our report dated January 27, 1995 included in Magma Copper Company's Form
10-K for the year ended December 31, 1994, and to all references to our firm
incorporated by reference in this registration statement.
ARTHUR ANDERSEN LLP
Tucson, Arizona,
June 12, 1995.
EXHIBIT 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form T-1
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility
of a Trustee Pursuant to Section 305(b)(2)___
STATE STREET BANK AND TRUST COMPANY
(Exact name of trustee as specified in its charter)
Massachusetts 04-1867445
(Jurisdiction of incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification No.)
225 Franklin Street, Boston, Massachusetts 02110
(Address of principal executive offices) (Zip code)
John R. Towers, Esq. Senior Vice President and Corporate Secretary
225 Franklin Street, Boston, Massachusetts 02110
(617) 654-3253
(Name, address and telephone number of agent for service)
MAGMA COPPER COMPANY
(Exact name of obligor as specified in its charter)
Delaware 86-0219794
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
7400 North Oracle Road
Suite 200
Tucson, Arizona 85704
(Address of principal executive offices) (Zip code)
Senior Subordinated Debt Securities
(Title of indenture securities)
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Department of Banking and Insurance of The Commonwealth of
Massachusetts, 100 Cambridge Street, Boston, Massachusetts.
Board of Governors of the Federal Reserve System, Washington,
D.C., Federal Deposit Insurance Corporation, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
The obligor is not an affiliate of the trustee or of its
parent, State Street Boston Corporation.
(See Note on page 6.)
Item 3. Voting Securities of the Trustee.
Furnish the following information as to each class of voting
securities of the trustee:
As of:
Col. A Col. B
Title of Class Amount outstanding
Not applicable.
Item 4. Trusteeships under Other Indentures.
If the trustee is a trustee under another indenture under which any
other securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, furnish the following
information:
(a) Title of the securities outstanding under each such other
indenture.
Not applicable.
(b) A brief statement of the facts relied upon as a basis for the
claim that no conflicting interest within the meaning of Section 310(b)(1)
of the Act arises as a result of the trusteeship under any such other
indenture, including a statement as to how the indenture securities will
rank as compared with the securities issued under such other indenture.
Not applicable.
Item 5. Interlocking Directorates and Similar Relationships with the
Obligor or Underwriters.
If the trustee or any of the directors or executive officers of the
trustee is a director, officer, partner, employee, appointee or
representative of the obligor or of any underwriter for the obligor,
identify each such person having any such connection and state the nature of
each such connection.
Not applicable.
Item 6. Voting Securities of the Trustee Owned by the Obligor or Its
Officials.
Furnish the following information as to the voting securities of the
trustee owned beneficially by the obligor and each director, partner and
executive officer of the obligor:
As of:
Col. A Col. B Col. C Col. D
Name of Title of Amount owned Percentage of
owner class beneficially voting securities
represented by
amount given in
Col. C
Not applicable.
Item 7. Voting Securities of the Trustee Owned by Underwriters or Their
Officials.
Furnish the following information as to the voting securities of the
trustee owned beneficially by each underwriter for the obligor and each
director, partner and executive officer of each such underwriter:
As of:
Col. A Col. B Col. C Col. D
Name of Title of Amount owned Percentage of
owner class beneficially voting securities
represented by
amount given in
Col. C
Not applicable.
Item 8. Securities of the Obligor Owned or Held by the Trustee.
Furnish the following information as to securities of the obligor
owned beneficially or held as collateral security for obligations in default
by the trustee:
As of:
Col. A Col. B Col. C Col. D
Title of Whether Amount owned Percent of
class the securities beneficially class repre-
are voting or or held as sented by
non-voting collateral security amount given
securities for obligations in Col. C
in default
Not applicable.
Item 9. Securities of Underwriters Owned or Held by the Trustee.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of an underwriter for the obligor,
furnish the following information as to each class of securities of such
underwriter any of which are so owned or held by the trustee:
As of:
Col. A Col. B Col. C Col. D
Title of Amount Amount owned Percent of
issuer outstanding beneficially class represented
and title or held as by amount
of class collateral security given in Col. C
for obligations in
default by trustee
Not applicable.
Item 10. Ownership or Holdings by the Trustee of Voting Securities of
Certain Affiliates or Security Holders of the Obligor.
If the trustee owns beneficially or holds as collateral security for
obligations in default voting securities of a person who, to the knowledge
of the trustee (1) owns 10 percent or more of the voting securities of the
obligor or (2) is an affiliate, other than a subsidiary, of the obligor,
furnish the following information as to the voting securities of such
person:
As of:
Col. A Col. B Col. C Col. D
Title of Amount Amount owned Percent of
issuer outstanding beneficially class represented
and title or held as by amount
of class collateral security given in Col. C
for obligations in
default by trustee
Not applicable.
Item 11. Ownership or Holdings by the Trustee of any Securities of a
Person Owning 50 Percent or More of the Voting Securities of
the Obligor.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of a person who, to the knowledge of
the trustee, owns 50 percent or more of the voting securities of the
obligor, furnish the following information as to each class of securities of
such person any of which are so owned or held by the trustee:
As of:
Col. A Col. B Col. C Col. D
Title of Amount Amount owned Percent of
issuer outstanding beneficially class represented
and title or held as by amount
of class collateral security given in Col. C
for obligations in
default by trustee
Not applicable.
Item 12. Indebtedness of the Obligor to the Trustee.
Except as noted in the instructions, if the obligor is indebted to
the trustee, furnish the following information:
As of:
Col. A Col. B Col. C
Nature of Amount Date due
indebtedness outstanding
Not applicable.
Item 13. Defaults by the Obligor.
(a) State whether there is or has been a default with respect to
the securities under this indenture. Explain the nature of any such
default.
Not applicable.
(b) If the trustee is a trustee under another indenture under which
any other securities, or certificates of interest or participation in any
other securities, of the obligor are outstanding, or is a trustee for more
than one outstanding series of securities under the indenture, state whether
there has been a default under any such indenture or series, identify the
indenture or series affected, and explain the nature of any such default.
To the best of the knowledge of the Trustee, there has not been
a default under any such indenture or series.
Item 14. Affiliations With the Underwriters.
If an underwriter is an affiliate of the trustee, describe each such
affiliation.
Not applicable.
Item 15. Foreign Trustee.
Identify the order or rule pursuant to which the foreign trustee is
authorized to act as sole trustee under indentures qualified or to be
qualified under the Act.
Not applicable.
Item 16. List of Exhibits.
List below all exhibits filed as a part of this statement of
eligibility.
1. A copy of the articles of association of the trustee as now in
effect.
A copy of the Articles of Association of the trustee, as now in
effect, is on file with the Securities and Exchange Commission
as Exhibit 1 to Amendment No. 1 to the Statement of Eligibility
and Qualification of Trustee (Form T-1) filed with Registration
Statement of Morse Shoe, Inc. (File No. 22-17940) and is
incorporated herein by reference thereto.
2. A copy of the certificate of authority of the trustee to
commence business, if not contained in the articles of association.
A copy of a Statement from the Commissioner of Banks of
Massachusetts that no certificate of authority for the trustee
to commence business was necessary or issued is on file with
the Securities and Exchange Commission as Exhibit 2 to
Amendment No. 1 to the Statement of Eligibility and
Qualification of Trustee (Form T-1) filed with Registration
Statement of Morse Shoe, Inc. (File No. 22-17940) and is
incorporated herein by reference thereto.
3. A copy of the authorization of the trustee to exercise corporate
trust powers, if such authorization is not contained in the documents
specified in paragraph (1) or (2) above.
A copy of the authorization of the trustee to exercise
corporate trust powers is on file with the Securities and
Exchange Commission as Exhibit 3 to Amendment No. 1 to the
Statement of Eligibility and Qualification of Trustee (Form
T-1) filed with Registration Statement of Morse Shoe, Inc.
(File No. 22-17940) and is incorporated herein by reference
thereto.
4. A copy of the existing by-laws of the trustee, or instruments
corresponding thereto.
A copy of the By-Laws of the trustee, as now in effect, is on
file with the Securities and Exchange Commission as Exhibit 4
to the Statement of Eligibility and Qualification of Trustee
(Form T-1) filed with Registration Statement of Eastern Edison
Company (File No. 33-37823) and is incorporated herein by
reference thereto.
5. A copy of each indenture referred to in Item 4, if the obligor
is in default.
Not applicable.
6. The consents of the United States institutional trustees
required by Section 321(b) of the Act.
The consent of the trustee required by Section 321(b) of the
Act is annexed hereto as Exhibit 6 and made a part hereof.
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its supervising or
examining authority.
A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority is annexed hereto as Exhibit
7 and made a part hereof.
8. A copy of any order pursuant to which the foreign trustee is
authorized to act as sole trustee under indentures qualified or to be
qualified under the Act.
Not applicable.
9. Foreign trustees are required to furnish a consent to service of
process.
Not applicable.
NOTE
The answers to this statement insofar as such answers relate to
persons who are affiliates of the obligors are based upon information
furnished to the trustee by the obligors. While the trustee has no reason
to doubt the accuracy of any such information, it cannot accept any
responsibility therefor.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
trustee, State Street Bank and Trust Company, a corporation organized and
existing under the laws of The Commonwealth of Massachusetts, has duly
caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Quincy and The
Commonwealth of Massachusetts, on the 12th day of June, 1995.
STATE STREET BANK AND TRUST COMPANY
By /s/ Ruth A. Smith
___________________________________
Ruth A. Smith
Assistant Vice President
EXHIBIT 6
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust
Indenture Act of 1939 in connection with the proposed issuance by Magma
Copper Company of its Senior Subordinated Debt Securities, we hereby
consent that reports of examination by Federal, State, Territorial or
District authorities may be furnished by such authorities to the Securities
and Exchange Commission upon request therefor.
STATE STREET BANK AND TRUST COMPANY
By /s/ Ruth A. Smith
___________________________________
Ruth A. Smith
Assistant Vice President
Dated: June 12, 1995
Exhibit 7
Consolidated Report of Condition of State Street Bank and Trust Company of
Boston, Massachusetts and foreign and domestic subsidiaries, a state banking
institution organized and operating under the banking laws of this
commonwealth and a member of the Federal Reserve System, at the close of
business December 31, 1994, published in accordance with a call made by the
Federal Reserve Act and in accordance with a call made by the Commissioner
of Banks under General Laws, Chaper 172, Section 22(a).
Thousands of
dollars
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin...... 942,661
Interest-bearing balances............................... 4,843,628
Securities................................................. 8,410,339
Federal funds sold and securities purchased
under agreements to resell in domestic offices
of the bank and of its Edge subsidiary.................. 2,240,374
Loans and Lease financing receivables:
Loans and Leases, net of unearned income..... 3,257,795
Allowance for Loan and Lease Losses.......... 58,184
Loans and Leases, net of unearned income and allowance.. 3,199,611
Assets held in trading accounts............................ 825,549
Premises and fixed assets.................................. 375,086
Other real estate owned.................................... 4,359
Investments in unconsolidated subsidiaries................. 25,051
Customers' Liability to this bank on acceptances
outstanding............................................. 55,358
Intangible assets.......................................... 34,862
Other assets............................................... 653,750
----------
Total assets............................................... 21,610,628
==========
LIABILITIES
Deposits:
In domestic offices..................................... 5,946,262
Noninterest-bearing...................... 4,175,167
Interest-bearing......................... 1,771,095
In foreign offices and Edge subsidiary.................. 8,147,182
Noninterest-bearing...................... 44,817
Interest-bearing......................... 8,102,365
Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of
the bank and of its Edge subsidiary..................... 4,912,704
Demand notes issued to the U.S. Treasury and Trading
Liabilities............................................. 423,324
Other borrowed money....................................... 386,049
Bank's liability on acceptances executed and outstanding... 55,621
Other liabilities.......................................... 530,536
----------
Total liabilities.......................................... 20,401,678
----------
EQUITY CAPITAL
Common Stock............................................... 28,043
Surplus.................................................... 177,736
Undivided profits.......................................... 1,003,171
----------
Total equity capital....................................... 1,208,950
----------
Total liabilities and equity capital....................... 21,610,628
==========
I, Rex S. Schuette, Senior Vice President and Comptroller of the above named
bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Rex S. Schuette
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true
and correct.
David A. Spina
Marshall N. Carter
Charles F. Kaye
CONFORMED
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
---------------------------
FORM T-1
Statement of Eligibility and Qualification Under the
Trust Indenture Act of 1939 of a Corporation
Designated to Act as Trustee
--------------------------
CHEMICAL TRUST COMPANY OF CALIFORNIA
(Exact name of trustee as specified in its charter)
CALIFORNIA 94-2926573
(State of incorporation (I.R.S. employer
if not a national bank) Identification No.)
50 California Street
San Francisco, California 94111
(Address of principal executive offices) (Zip Code)
-------------------------------
Magma Copper Company
(Exact name of Obligor as specified in its charter)
Delaware 86-0219794
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) Identification No.)
7400 North Oracle Road
Suite 200
Tucson, Arizona 85704
(Address of principal executive offices) (Zip Code)
--------------------------------
Senior Debt Securities
(Title of indenture securities)
1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Superintendent of Banks of the State of California,
235 Montgomery Street, San Francisco, CA 94104-2980.
Board of Governors of the Federal Reserve System,
Washington, DC. 20511.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor and Underwriters.
If the Obligor or any Underwriter for the Obligor is an affiliate of the
trustee, describe each such affiliation.
No such affiliation with the Obligor or Underwriters.
(Item 2 is at the date hereof based upon incomplete information but is
believed to be correct and may be considered to be complete unless
modified by an amendment to this Form T-1).
16. List of Exhibits.
Exhibit 1. Articles of Incorporation of the Trustee as Now in
Effect.
Exhibit 2. Certificate of Authority of the Trustee to
Commence Business.
Exhibit 3. Authorization of the Trustee to Exercise Corporate
Trust Powers (Contained in Exhibit 2.)
Exhibit 4. Existing By-Laws of the Trustee.
Exhibit 5. Not Applicable
Exhibit 6. Consent of the Trustee.
Exhibit 7. Report of Condition of the Trustee.
Exhibit 8. Not Applicable
Exhibit 9. Not Applicable
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Chemical Trust Company of California, a corporation organized and
existing under the laws of the State of California, has duly caused this
statement of eligibility and qualification to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Los Angeles, and
State of California, on the 22nd day of June, 1995.
CHEMICAL TRUST COMPANY OF CALIFORNIA
By s/Paula Oswald
-------------------------------
PAULA OSWALD
Assistant Vice President
Exhibit 1. Restated Articles of Incorporation of the Trustee as now in Effect.
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RESTATED ARTICLES OF INCORPORATION
OF
MANUFACTURES HANOVER TRUST COMPANY OF CALIFORNIA
Lynn E. Loveall and Denise M. Westermark hereby certify as follows.
1. They are the vice president and the assistant secretary
respectively, of Manufacturers Hanover Trust Company of California.
2. The Articles of Incorporation of Manufacturers Hanover Trust
Company of California are amended and restated to read in full as follows:
One: The name of the Corporation is:
Manufacturers Hanover Trust Company of California
Two: The purpose of the corporation is to engage in the commercial
banking business and the trust business and any other lawful activities which
are not, by applicable laws or regulations, prohibited to a commercial bank
authorized to engage in the trust business; provided, however, that this
corporation shall not engage in the business of making loans, investments or
accepting deposits except for (a) deposits that are generated from trust funds
not currently invested and that are properly secured to the extent required by
law; (b) deposits representing funds received for a special use in the capacity
of managing agent or custodian for an owner of, or investor in, real property,
securities, or other personal property; or for such owner or investor as agent
or custodian of funds held for investment or as escrow agent; or for an issuer
of, or broker or dealer in securities, in ac capacity such as paying agent,
dividend disbursing agent, or securities clearing agent; provided such deposits
are not employed by or for the account of the customer in the manner of a
general purpose checking account or interest-bearing account; or (c) making call
loans to securities dealers or purchasing money market instruments such as
certificates of deposit, commercial paper, government or municipal securities,
and bankers acceptances; provided, however that such authorized loans and
investments may not be used as a method of channeling funds to non-banking
affiliates of the corporation.
Three: The total number of shares which the corporation is authorized
to issue is one hundred (100) shares of $100 par value each. The shares of the
corporation are subject to assessment by the corporation by order of the
Superintendent of Banks of the State of California for the purpose of correcting
an impairment of contributed capital in the manner and to the extent provided in
Division 1 of the California Financial Code.
Four: No amendment to these Articles of Incorporation shall become
effective unless the certificate of amendment or other instrument setting forth
such amendment is filed with the Secretary of State of the State of California
with the approval of the Superintendent of Banks of the State of California
endorsed thereon. Promptly after the amendment becomes effective, a copy of such
certificate of amendment or other instrument certified by the Secretary of State
shall be filed with the Superintendent of Banks.
3. The amendment and restatement set forth herein have been duly
approved by the Board of Directors of Manufacturers Hanover Trust Company of
California.
4. The amendment and restatement set forth herein have been duly
approved by the required vote of shareholders in accordance with sections 902
and 903 of the California Corporation Code. The corporation has outstanding 100
shares. The number of shares voting in favor of the amendment exceeded 50%,
satisfying the voting requirements necessary to pass the amendment.
We further declare under penalty of perjury under the laws of
the State of California that the matters set forth in this certificate are true
and correct of our own knowledge
Dated: 12/23/86 /s Lynn C. Loveall
--------------------- --------------------
Lynn C. Loveall
Vice President
/s Denise M. Westermark
--------------------
Denise M. Westermark
Assistant Secretary
CERTIFICATE OF AMENDMENT
OF
ARTICLES OF INCORPORATION
Nicholas J. Papanikolaw and Anthony J. Horan Certify that:
1. They are the chairman of the board and the assistant
secretary, respectively, of MANUFACTURERS HANOVER TRUST COMPANY OF CALIFORNIA, a
California corporation.
2. Article One of the Articles of Incorporation of this
corporation is amended to read as follows:
One The name of the corporation is:
Chemical Trust Company of
California
3. The foregoing amendment of Articles of Incorporation has
been duly approved by the unanimous vote of share holders in accordance with
Section 902 of the Corporation Code.
We further declare under the penalty of perjury under the laws
of the State of California that the matters set forth in this certificate are
true and correct of our own knowledge.
Date: March 26, 1992
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/s Nicholas J. Papanikolaw
---------------------------
Chairman
/s Anthony J. Horan
---------------------------
Assistant Secretary
Exhibit 2. Certificate of Authority of the Trustee to Commence Business.
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No. 1476
State of California
State Banking Department
Whereas, after due examination it appears that Chemical Trust Company of
California having its principal place of business in the City and County of San
Francisco, State of California, has complied with all the provisions of the
Banking Law of the State of California, and with all other necessary
requirements of law relating thereto;
Now Therefore, I, the undersigned, Superintendent of Banks of the State
of California, do certify that said bank is qualified and is hereby authorized
to transact a trust banking business at 50 California Street in the City and
County of San Francisco, State of California.
In Testimony Whereof witness my hand and Seal this 9th day of April,
1984 at San Francisco, California.
/s LOUIS CARTER
Superintendent of Banks
State of California
(Seal of Superintendent of Banks
of the State of California)
Exhibit 3. Authorization of the Trustee to Exercise Corporate Trust Powers.
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(Contained in Exhibit 2.)
Exhibit 4. Existing By-Laws of the Trustee.
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BY-LAWS
OF
MANUFACTURERS HANOVER TRUST COMPANY OF CALIFORNIA
ARTICLE I
PRINCIPAL OFFICE
Section 1. The head office for the transaction of the business of the
corporation is hereby fixed and located at San Francisco, California. The Board
of Directors may change said head office from one location to another with the
written approval of the Superintendent of Banks of the State of California.
Section 2. The Board of Directors may establish and maintain one or
more branch offices within the State of California when authorized by the
Superintendent of Banks of the State of California.
ARTICLE II
Meetings of Shareholders
Section 1. All meetings of the shareholders shall be held at any place
within or without the State of California which may be designated either by the
Board of Directors or by the written consent of all shareholders entitled to
vote thereat and not present at the meeting given either before or after the
meeting and filed with the secretary of the corporation. In the absence of any
such designation, shareholders' meetings shall be held at the head office of the
corporation.
Section 2. The annual meeting of the shareholders of the corporation
shall be held at such time in each year as may be designated from time to time
by the Board of Directors. At such meeting, directors shall be elected and any
other proper business may be transacted which is within the powers of the
shareholders. Written notice of each annual meeting shall be given to each
shareholder entitled to vote either personally or by first-class mail or other
means of written communication (which includes, without limitation and wherever
used in these By-Laws, telegraphic and facsimile communication), charges
prepaid, addressed to each shareholder at the address appearing on the books of
the corporation, or given by the shareholder to the corporation for the purpose
of notice. If any notice or report addressed to the shareholder at the address
of such shareholder appearing on the books of the corporation is returned to the
corporation by the United States Postal Service marked to indicate that the
United States Postal Service is unable to deliver the notice or report to the
shareholder at such address, all future notices or reports shall be deemed to
have been duly given without further mailing if the same shall be available for
the shareholder upon written demand of the shareholder at the principal
executive office of the corporation for a period of one (1) year from the date
of the giving of the notice or report to all other shareholders. If no address
of a shareholder appears on the books of the corporation or is given by the
shareholder to the corporation, notice is duly given to him if sent by mail or
other means of written communication addressed to the place where the principal
executive office of the corporation is located or if published at least once in
a newspaper or general circulation in the county in which said principal
executive office is located.
All such notices shall be given to each shareholder entitled thereto not
less than ten (10) days nor more than sixty (60) days before each annual
meeting. Any such notice shall be deemed to have been given at the time when
delivered personally or deposited in the United States mail or delivered to a
common carrier for transmission to the recipient or actually transmitted by the
person giving the notice by electronic means to the recipient or sent by other
means of written communication.
Such notices shall state:
(a) the place, date and hour of the meeting;
(b) those matters which the Board, at the time of the mailing of the
notice, intends to present for action by the shareholders;
(c) if directors are to be elected, the names of nominees intended
at the time of the notice to be presented by management for election; and
(d) such other matters,if any, as may be expressly required by statute.
Section 3. Special meetings of the shareholders for the purpose of
taking any action permitted to be taken by the shareholders under the General
Corporation Law, the California Banking Law and the Articles of Incorporation of
this corporation, may be called by the chairman of the board or the president,
or by any vice president, or by the Board of Directors, or by the holders of
shares entitled to cast not less than ten percent (10%) of the votes at the
meeting. Except in special cases where other express provision is made by
statute, notice of such special meetings shall be given in the same manner and
contain the same statements as required for annual meetings of shareholders.
Notice of any special meeting shall also specify the general nature of the
business to be transacted, and no other business may be transacted at such
meeting.
Section 4. The presence in person or by proxy of the holders of a
majority of the shares entitled to vote at any meeting shall constitute a quorum
for the transaction of business. The shareholders present at a duly called or
held meeting at which a quorum is present may continue to transact business
until adjournment, notwithstanding the withdrawal of enough shareholders to
leave less than a quorum, if any action taken (other than adjournment) is
approved by at least a majority of the shares required to constitute a quorum.
In the absence of a quorum, any meeting of shareholders may be adjourned from
time to time by the vote of a majority of the shares represented either in
person or by proxy, but no other business may be transacted except as provided
in the preceding sentence.
Section 5. The affirmative vote of a majority of the shares represented
and voting at a duly held meeting at which a quorum is present (which shares
voting affirmatively shall constitute at least a majority of the required
quorum) shall be the act of the shareholders except as may otherwise be provided
by (i) Section 4 of this Article II, (ii) the cumulative voting provisions for
this election of directors as stated in this Section below, and (iii) the
California General Corporation Law, the California Banking Law or the Articles
of Incorporation of this corporation. Subject to the requirements of the next
sentence, every shareholder entitled to vote at any election for directors may
cumulate his votes and give one candidate a number of votes equal to the number
of directors to be elected multiplied by the number of votes to which his shares
are normally entitled, or distribute his votes on the same principle among as
many candidates as he shall think fit. No shareholder shall be entitled to
cumulate votes unless such candidate or candidates' names have been placed in
nomination prior to the voting and the shareholder has given notice at the
meeting prior to the voting of the shareholder's intention to cumulate his
votes. If any one shareholder has given such notice, all shareholders may
cumulate their votes for candidates in nomination. The candidates receiving the
highest number of votes of shares entitled to be voted for them, up to the
number of directors to be elected, shall be elected.
Section 6. Any action which, under any provision of the laws of the
State of California, may be taken at a meeting of the shareholders, may be taken
without a meeting if authorized by a writing signed by persons entitled to vote
a majority of the shares of the corporation, and filed with the secretary of the
corporation.
Section 7. Every person entitled to vote or execute consents shall have
the right to do so either in person or by one or more agents authorized by a
written proxy executed by such person or his duly authorized agent and filed
with the secretary. Proxies shall be valid and shall be executed in accordance
with Section 705 of the General Corporation Law or successor section thereto.
ARTICLE III
Board of Directors
Section 1. Subject to the provisions of the California General
Corporation Law, the California Banking Law and any limitations in the Articles
of Incorporation and these By-Laws as to action to be authorized or approved by
the shareholders, the business and affairs of the corporation shall be managed
and all corporate powers shall be exercised by or under the direction of the
Board of Directors.
Section 2. The authorized number of directors shall not be less than six
(6) nor more than eleven (11). The exact authorized number of directors shall be
fixed from time to time, within the limits specified in this Section or in the
Articles of Incorporation, by the Board of Directors, or by a By-law or
amendment thereof duly adopted by the vote of a majority of the shares
represented and voting at a duly held meeting at which a quorum is present
(which shares voting affirmatively also constitute at least a majority of the
required quorum), or by the written consent of the holders of a majority of the
outstanding shares entitled to vote, until changed by a duly adopted amendment
to the Articles of Incorporation or by an amendment to this Section adopted by
approval of the holders of a majority of the outstanding shares. No amendment
shall be adopted reducing the minimum authorized number of Directors to a number
less than five (5).
Section 3. The directors shall be elected at each annual meeting of
shareholders, but if any such annual meeting is not held or the directors are
not elected thereat, the directors may be elected at any special meeting of
shareholders held for that purpose or by unanimous written consent of all shares
entitled to vote for the election of directors. Each director, including a
director elected to fill a vacancy, shall hold office until his successor is
elected, except as otherwise provided by statute.
Section 4. Vacancies in the Board of Directors, except for a vacancy
created by the removal of a director, may be filled by a majority of the
directors then in office, whether or not less than a quorum, or by a sole
remaining director.
Section 5. Each director upon taking office, after the corporation's
receipt of a Certificate of Authority to transact business as a trust company
from the Superintendent of Banks of the State of California, shall make an oath
or affirmation as required by Section 682 of the California Financial Code or
successor section thereto, and each such oath, subscribed by the director and
certified by the officer before whom it is taken, shall be immediately filed
with the Superintendent of Banks.
ARTICLE IV
Meetings of Directors
Section 1. The Board of Directors shall hold a regular or special
meeting at least once each calendar month. Regular meetings of the Board of
Directors shall be held at any time and place within the State of California
that has been designated by resolution from time to time by the Board of
Directors. In the absence of such designation, regular meetings shall be held at
the head office of the corporation, except as otherwise provided in this Section
1. Immediately following each annual meeting of the shareholders there shall be
a regular meeting of the Board of Directors of the corporation within the State
of California at the place of said annual meeting or at such other place as
shall have been designated by the Board of Directors for the purpose of
organization, election of officers and the transaction of other business. Other
regular meetings of the Board of Directors shall be held without call on such
date and time as may be fixed by the Board of Directors; provided, however, that
should any such day fall on a legal holiday, then said meeting shall be held at
the same time on the next business day thereafter ensuing which is not a legal
holiday. Notice of regular meetings of the directors is hereby dispensed with
and no notice whatever of any such meeting need be given, provided that notice
of any change in the time or place of regular meetings shall be given to all of
the directors in the same manner as notice for special meetings of the Board of
Directors.
Section 2. Special meetings of the Board of Directors may be held at any
place within or without the State of California which has been designated in the
notice of the meeting, or, if not designated in the notice or if there is no
notice, at the head office of the corporation. Special meetings of the Board of
Directors for any purpose or purposes may be called at any time by the chairman
of the Board or president or by any two directors. Notice of the time and place
of special meetings shall be delivered personally or by telephone to each
director, or sent by first-class mail or telegram or facsimile transmission,
charges prepaid, addressed to him at his address as it appears upon the records
of the corporation or, if it is not so shown on the records and is not readily
ascertainable, at the place at which the meetings of the directors are regularly
held. In case such notice is mailed, it shall be deposited in the United States
mail at least four (4) days prior to the time of the holding of the meeting. In
case such notice is telegraphed or sent by facsimile transmission, it shall be
delivered to a common carrier for transmission to the director or actually
transmitted by the person giving the notice by electronic means to the director
at least twenty-four (24) hours prior to the time of the holding of the meeting.
Any notice given personally or by telephone may be communicated to either the
director or to a person at the office of the director whom the person giving the
notice has reason to believe will promptly communicate it to the director. Such
deposit in the mail, delivery to a common carrier, transmission by electronic
means or delivery, personally or by telephone, as above provided, shall be due,
legal and personal notice to such directors. The notice need not specify the
place of the meeting if the meeting is to be held at the head office of the
corporation, and need not specify the purpose of the meeting.
Section 3. Presence of a majority of the authorized number of directors
at a meeting of the Board of Directors constitutes a quorum for the transaction
of business, except as hereinafter provided. Every act or decision done or made
by a majority of the directors present at a meeting duly held at which a quorum
is present shall be deemed the act of the Board of Directors, subject to the
provisions of Section 310, 311 and 317 of the California General Corporation
Law. Members of the Board may participate in a meeting through use of conference
telephone or similar communications equipment, so long as all members
participating in such meeting can hear one another. A meeting at which a quorum
is initially present may continue to transact business notwithstanding the
withdrawal of directors, provided that any action taken is approved by at least
a majority of the required quorum for such meeting. A majority of the directors
present, whether or not a quorum is present, may adjourn any meeting to another
time and place. If the meeting is adjourned for more than twenty-four (24)
hours, notice of any adjournment to another time or place shall be given prior
to the time of the adjourned meeting to the directors who were not present at
the time of the adjournment.
Section 4. Notice of a meeting need not be given to any director who
signs a waiver of notice or consent to holding the meeting or an approval of the
minutes thereof, whether before or after the meeting, or who attends the meeting
without protesting, prior thereto or at its commencement, the lack of notice to
such director. All such waivers, consents and approvals shall be filed with the
corporate records or made a part of the minutes of the meeting.
Section 5. Any action required or permitted to be taken by the Board of
Directors may be taken without a meeting if all members of the Board shall
individually or collectively consent in writing to such action. Such written
consent or consents shall be filed with the minutes of the proceedings of the
Board. Such action by written consent shall have the same force and effect as a
unanimous vote of such directors.
Section 6. The provisions of this Article IV shall also apply, with
necessary changes in points of detail, to committees of the Board of Directors,
if any, and to actions by such committees (except that regular meetings of
committees shall be established by the committees and except that special
meetings of a committee may also be called at any time by any two members of the
committee), unless otherwise provided by these By-Laws or by the resolution of
the Board of Directors designating such committees. For such purpose, references
to "the Board" or "the Board of Directors" shall be deemed to refer to each such
committee and references to "directors" or "members of the Board" shall be
deemed to refer to members of the committee. Committees of the Board of
Directors may be designated, and shall be subject to the limitations on their
authority, as provided in Section 311 of the General Corporation Law or any
successor section thereto. The appointment of members or alternate members of a
committee requires the vote of a majority of the authorized number of directors.
Section 7. Directors and members of committees may receive such compensation, if
any, for their services, and such reimbursement for expenses, as may be fixed or
determined by resolution of the Board.
ARTICLE V
Officers
Section 1. The officers of the corporation shall be a chairman of the
board or a president or a general manager, or any combination of the foregoing,
a secretary, and a treasurer, who shall also be the chief financial officer of
the corporation. The corporation may also have, at the discretion of the Board
of Directors, one or more executive vice presidents, senior vice presidents and
vice presidents, one or more assistant secretaries, one or more assistant
treasurers, and such other officers as may be designated from time to time by
the Board of Directors. Any number of offices may be held by the same person.
The officers shall be elected by the Board of Directors and shall hold office at
the pleasure of such Board.
Chairman of the Board
Section 2. The chairman of the board, if there be such officer, shall,
if present, preside at all meetings of the Board of Directors and exercise and
perform such other powers and duties as may be from time to time assigned to him
by the Board of Directors or prescribed by the By-Laws.
President
Section 3. Subject to such powers and duties, if any, as may be
prescribed by these By-Laws or the Board of Directors for the chairman of the
board, if there be such officer, the president shall be the chief executive
officer of the corporation and shall, subject to the control of the Board of
Directors, have general supervision, direction and control of the business and
officers of the corporation. He shall preside at all meetings of the
shareholders and, in the absence of the chairman of the board, or if there be
none, at all meetings of the Board of Directors. He shall have all the powers
and shall perform all of the duties which are ordinarily inherent in the office
of the president, and he shall have such further powers and shall perform such
further duties as may be prescribed for him by the Board of Directors.
General Manager
Section 4. In the absence or disability or refusal to act of the
president, the general manager shall perform all of the duties of the president
and when so acting shall have all the powers of and be subject to all the
restrictions upon the president.
Vice Presidents
Section 5. In the absence or disability or refusal to act of the
president or the general manager, the executive vice president designated by the
president or the general manager or the Board of Directors, or, if there be
none, the senior vice president so designated, or if there be none, the vice
president so designated shall perform all of the duties of the president and
when so acting shall have all the powers of and be subject to all the
restrictions upon the president. The executive vice presidents, the senior vice
presidents and the vice presidents shall have such other powers and perform such
other duties as from time to time may be prescribed for them, respectively, by
the Board of Directors or the By-Laws.
Secretary
Section 6. The secretary shall keep or cause to be kept at the head
office of the corporation or such other place as the Board of Directors may
order, a book of minutes of all proceedings of the shareholders, the Board of
Directors and committees of the Board, with the time and place of holding,
whether regular or special, and if special how authorized, the notice thereof
given, the names of those present at directors' and committee meetings, and the
number of shares present or represented at shareholders' meetings. The secretary
shall keep or cause to be kept at the head office a record of shareholders or a
duplicate record of shareholders showing the names of the shareholders and their
addresses, the number of shares and classes of shares held by each, the number
and date of certificates issued for the same and the number and date of
cancellation of every certificate surrendered for cancellation. The secretary or
an assistant secretary or, if they are absent or unable or refuse to act, any
other officer of the corporation, shall give or cause to be given notice of all
the meetings of the shareholders, the Board of Directors and committees of the
Board required by the By-Laws or by law to be given, and he shall keep the seal
of the corporation, if any, in safe custody and shall have such other powers and
perform such other duties as may be prescribed by the Board of Directors or by
the By-Laws.
Section 7. It shall be the duty of the assistant secretaries to assist
the secretary in the performance of his duties and generally to perform such
other duties as may be delegated to them by the Board of Directors.
Treasurer
Section 8. The treasurer shall be the chief financial officer of the
corporation and shall keep and maintain, or cause to be kept and maintained,
adequate and correct books and records of account of the corporation. He shall
receive and deposit all moneys and other valuables belonging to the corporation
in the name and to the credit of the corporation and shall disburse the same
only in such manner as the Board of Directors or the appropriate officers of the
corporation may from time to time determine, shall render to the president and
the Board of Directors, whenever they request it, an account of all his
transactions as treasurer and of the financial condition of the corporation, and
shall perform such further duties as the Board of Directors may require.
Section 9. It shall be the duty of the assistant treasurers to assist
the treasurer in the performance of his duties and generally to perform such
other duties as may be delegated to them by the Board of Directors.
ARTICLE VI
Annual Report
Section 1. So long as the corporation shall have fewer than one hundred
shareholders of record (determined as provided in Section 605 of the General
Corporation Law of the State of California), the requirement of Section 1501(a)
of said law that an annual report be sent to the shareholders is expressly
waived.
ARTICLE VII
Amendments
Section 1. New By-Laws may be adopted or these By-Laws may be amended
or repealed by the affirmative vote or written consent of a majority of the
outstanding shares entitled to vote, except as otherwise provided by law or by
the Articles of Incorporation or these By-Laws.
Section 2. Subject to the right of shareholders as provided in Section
1 of this Article to adopt, amend or repeal By-Laws, and except as otherwise
provided by law or by the Articles of incorporation, By-Laws, or other than a
by-law or amendment thereof changing the authorized maximum or minimum number of
directors, may be adopted, amended or repealed by the Board of Directors.
Section 3. Any amendment to these By-Laws shall become effective only
when approved by the Superintendent of Banks of the State of California and when
a copy thereof, certified by the secretary of the corporation, has been filed
with the Superintendent of Banks.
Exhibit 6. Consent of the Trustee.
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Chemical Trust Company of California hereby consents, in accordance with
the provisions of Section 321(b) of the Trust Indenture Act of 1939, that
reports of examinations by Federal, State, Territorial and District authorities
may be furnished by such authorities to the Securities and Exchange Commission
upon its request therefor.
CHEMICAL TRUST COMPANY OF CALIFORNIA
BY: s/Paula Oswald
--------------------------------
Paula Oswald
Assistant Vice President
Exhibit 7. Report of Condition of the Trustee.
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TRUST COMPANY
Consolidated Report of Condition of Chemical Trust Company of California
-----------------------------------------
(Legal Title)
Located at San Francisco San Francisco CA 94111
---------------------------------------------------------------------
(City) (County) (State) (Zip)
as of close of business on March 31, 1995 Bank No. 1476
------------------------------------ ----------
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ASSETS DOLLAR AMOUNT IN THOUSANDS
1. Cash and due from banks 4,679
2. U.S. Treasury securities 6,000
3. Obligations of other U.S. Government agencies
and corporations 3,988
4. Obligations of States and political subdivisions
5. Other securities
(including $ corporate stock
------------------
(a) Loans
(b) Less: Reserve for possible loan losses
(c) Loans (Net)
7. Bank Premises, furniture and fixtures and other
assets representing bank premises
(including $ -0- capital leases) 225
-----------
8. Real estate owned other than bank premises
9. Investments in subsidiaries not consolidated
10. Other assets (complete schedule on reverse)
(including $ 2,244 intangibles) 7,119
--------------
11. TOTAL ASSETS 22,011
======
LIABILITIES
12. Liabilities For borrowed money
13. Mortgage indebtedness
(including $ capital leases)
----------------------
14. Other liabilities (complete on schedule on reverse 4,801
15. TOTAL LIABILITIES 4,801
=====
16. Capital notes and debentures
SHAREHOLDERS EQUITY
17. Preferred stock--
(Number shares outstanding )Amount $
---------------------
18. Common stock--
(Number shares authorized 100 )Amount $
---------------------
(Number shares outstanding 100 Amount $ 10
---------------------
19. Surplus Amount $ 9,990
20. TOTAL CONTRIBUTED CAPITAL 10,000
21. Retained earnings and other capital reserves 7,210
22. TOTAL SHAREHOLDERS EQUITY 17,210
23. TOTAL LIABILITIES AND CAPITAL ACCOUNTS 22,011
======
MEMORANDA
1. Assets deposited with State Treasurer to qualify for exercise
of fiduciary powers (market value) 605
- --------------------------------------------------------------------------------
The undersigned, Andrew M. Wilcox, Managing Director and
---------------------------------------
(Name and Title)
Patrick D. Fleck, Vice President & CFO
--------------------------------------
(Name and Title)
of the above named trust company, each declares, for himself alone and not for
the other: I have a personal knowledge of the matters contained in this report
(including the reverse side hereof), and I believe that each statement in said
report is true. Each of the undersigned, for himself alone and not for the
other, certifies under penalty of perjury that the foregoing is true and
correct.
Executed on 4/13/95 , at San Francisco , California
-------------------------- ----------------------------
(Date) (City)
s/Andrew M. Wilcox s/Patrick D. Fleck
--------------------- -------------------
(Signature) (Signature)
SCHEDULE OF OTHER ASSETS
Cost of Business Acquisitions 2,244
Accounts Receivable 4,272
Accrued Interest 202
Deferred Taxes 298
Other 103
Total (same as Item 10) 7,119
SCHEDULE OF OTHER LIABILITIES
Accrued Income Taxes 2,302
Accrued Expenses & A/P 147
Accrued Inter company Exp/Pay 904
Accrued Pension & Benefits 1,095
Other 353
Total (same as Item 14) 4,801
