<PAGE>
As filed with the Securities and Exchange Commission on October 23, 1997.
Registration No. 333-______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
MISSISSIPPI CHEMICAL CORPORATION
--------------------------------
(Exact name of registrant as specified in its charter)
MISSISSIPPI 64-0292638
- ------------------------------- ------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
P.O. BOX 388
YAZOO CITY, MISSISSIPPI 39194
(601) 746-4131
(Address, including zip code, and telephone number, including area
code, of Registrant's principal executive offices)
_______________
Bill Smith
General Counsel
Mississippi Chemical Corporation
P.O. Box 388
Yazoo City, Mississippi 39194
(601) 746-4131
(Name, address, and telephone number,
including area code, of agent for service)
_______________
COPIES TO:
Alan J. Bogdanow, Esq.
Hughes & Luce, L.L.P.
1717 Main Street, Suite 2800
Dallas, Texas 75201
(214) 939-5500
Approximate date of commencement of proposed sale of the securities 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, check the following box: [X]
<PAGE>
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
TITLE OF EACH CLASS AMOUNT Proposed Maximum Proposed Maximum Amount of
OF SECURITIES TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED PER SHARE/1/ OFFERING PRICE/1/ FEE
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities $300,000,000 100% $300,000,000 $90,909
======================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
_______________
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 THAT SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
<PAGE>
SUBJECT TO COMPLETION
Preliminary Prospectus dated October 23, 1997
This Preliminary Prospectus and the information contained herein are 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 a solicitation of an offer to buy, nor shall there be any
sale of, these securities in any jurisdiction in which such offer, solicitation
or sale would be unlawful prior to registration, qualification or filing under
the securities laws of any such jurisdiction.
MISSISSIPPI CHEMICAL CORPORATION
DEBT SECURITIES
Mississippi Chemical Corporation (the "Company") may from time to time
offer its debt securities ("Securities") up to an aggregate initial offering
price not to exceed $300,000,000, in separate series, in amounts and at prices
and on terms determined by market conditions at the time of the sale. The
Securities may be denominated in U.S. dollars or in any other currency, currency
units or composite currencies as may be designated by the Company.
The designation, aggregate principal amount, maturity date, public
offering price, interest rate or rates (which may be fixed or variable) or the
method by which such rate or rates are determined and timing of payments of
interest, if any, provision for redemption, sinking fund requirements, if any,
any other variable terms and the method of distribution in connection with the
offering of Securities in respect of which this Prospectus is being delivered,
will be set forth in a Prospectus Supplement relating thereto. The Prospectus
Supplement will contain information, where applicable, relating to certain
United States federal income taxes relating to, and any listing on a securities
exchange of, the Securities covered by such Prospectus Supplement.
This Prospectus may not be used to consummate sales of securities
unless accompanied by a Prospectus Supplement.
____________________________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
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 Company may sell Securities to or through underwriters or groups
of underwriters or dealers, and also may sell Securities to one or more other
purchasers, directly or through agents. See "Plan of Distribution." The
Prospectus Supplement will set forth the names of any underwriters, dealers or
agents involved in the sale of any Securities offered thereunder, the principal
amounts, if any, to be purchased by underwriters and the compensation of such
underwriters, dealers or agents.
____________________________________
The date of this Prospectus is ___________, 1997.
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NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY OR ANY UNDERWRITER, DEALER OR AGENT. NEITHER THE DELIVERY OF
THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE
AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE
THE DATE HEREOF.
AVAILABLE INFORMATION
The Company is subject to the information requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
------------
accordance therewith, files reports, proxy statements, information statements,
and other information with the Securities and Exchange Commission (the
"Commission"). Such reports, proxy statements, and other information may be
----------
inspected and copied at the public reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549 and at
the Commission's Regional Offices at Seven World Trade Center, 13th Floor, New
York, New York 10048; and at Citicorp Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661. Copies of such material may be obtained at
prescribed rates from the Public Reference Room of the Commission at its
principal office in Washington, D.C. The Commission maintains a site on the
World Wide Web that contains documents filed electronically with the Commission.
The address of the Commission's web site is http://www.sec.gov, and the
materials filed electronically by the Company may be inspected at such site. In
addition, the materials filed by the Company at the New York Stock Exchange may
be inspected at the Exchange's offices, 20 Broad Street, New York, New York
10005.
The Company has filed a Registration Statement on Form S-3 with the
Commission under the Securities Act of 1933, as amended (the "Securities Act"),
--------------
concerning the Securities. This Prospectus, which constitutes a part of the
Registration Statement, omits certain of the information contained in the
Registration Statement and the exhibits thereto. Statements contained in this
Prospectus, or in any document incorporated by reference herein, as to the
contents of any document are summaries of such documents and are not necessarily
complete, and in each instance reference is made to the copy of such document
filed as an exhibit to the Registration Statement or such other document, each
such statement being hereby qualified in all respects by such reference. The
Registration Statement, including the exhibits thereto, is on file at the
offices of the Commission and may be inspected and copied as described above.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company incorporates by reference herein the Company's Annual
Report on Form 10-K for the year ended June 30, 1997, which has been filed with
the Commission pursuant to the Exchange Act.
All documents and reports filed by the Company pursuant to Sections
13(a), 13(c), 14, or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the termination of the offering relating to this
Prospectus will be deemed to be incorporated by reference into this Prospectus
and to be a part hereof from the dates of filing of such documents or reports.
Any statement contained herein or in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes of the Registration
Statement and this Prospectus to the extent that a statement contained herein or
in any subsequently filed document which also is 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 the Registration Statement or this Prospectus.
This Prospectus incorporates documents by reference which are not
presented herein or delivered herewith. Such documents (other than exhibits to
such documents, unless such exhibits are specifically incorporated by reference)
are available, without charge, to any person to whom this Prospectus is
delivered, upon written or oral request to: Rosalyn B. Glascoe, Corporate
Secretary, Mississippi Chemical Corporation, P.O. Box 388, Yazoo City,
Mississippi 39194 (telephone (601) 746-4131).
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<PAGE>
THE COMPANY
The Company produces and supplies a full product line of fertilizers,
including nitrogen, phosphate and potash fertilizers. The Company's principal
nitrogen products include ammonia, fertilizer-grade ammonium nitrate, UAN
solutions, and urea. The Company currently produces nitrogen fertilizers at its
production facilities in Yazoo City, Mississippi and Donaldsonville, Louisiana
and has entered into a 50-50 joint venture to construct an ammonia plant in The
Republic of Trinidad and Tobago. The Company distributes its nitrogen
fertilizers primarily in the southern farming regions of the United States. The
Company produces diammonium phosphate fertilizer ("DAP") at its facility in
Pascagoula, Mississippi and exports a vast majority of its DAP production.
China, India, and Latin America are currently the Company's largest DAP export
markets. The Company's three mines and related facilities near Carslbad, New
Mexico produce the Company's potash fertilizer. A majority of the Company's
agricultural potash sales are in domestic markets in states west of the
Mississippi River and its primary export sales are to Latin American countries
and Japan. The Company also markets some of its nitrogen and potash products for
industrial use.
The Company was incorporated in Mississippi in 1994 and is the successor by
merger, effective July 1, 1994, to a fertilizer cooperative formed in 1948. The
Company's principal executive offices are located at Highway 49 East, P. O. Box
388, Yazoo City, Mississippi 39194 and its telephone number is (601) 746-4131.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of the Company's earnings to fixed
charges, for the periods indicated:
<TABLE>
<CAPTION>
YEAR ENDED JUNE 30,
- ----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1997 1996 1995 1994 1993
---- ---- ---- ---- ----
9.60 74.31 33.93 7.51(1) 4.98 (1)
==== ===== ===== ==== ====
</TABLE>
(1) Exclusive of discontinued operations. If the ratio included
discontinued operations, the ratio for 1994 and 1993 would be 2.37 and 2.37,
respectively.
For the purpose of computing the ratios of earnings to fixed charges,
"earnings" consists of earnings from continuing operations before income taxes
and fixed charges and, for periods prior to July 1, 1994, before patronage
refunds. "Fixed charges" consists of interest charges and the portion of rental
expense deemed representative of the interest factor.
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<PAGE>
USE OF PROCEEDS
Except as otherwise provided in an applicable Prospectus Supplement, the
net proceeds from the sale of the Securities will be added to the Company's
funds to be used for general corporate purposes, including repayment of bank
debt, working capital, capital expenditures and the repayment of other debt
outstanding from time to time. Pending such application, such net proceeds may
be invested in short-term marketable securities. Specific information about the
use of proceeds from the sale of Securities will be set forth in the applicable
Prospectus Supplement. The Company may from time to time incur additional
indebtedness other than through the offering of Securities pursuant to this
Prospectus.
DESCRIPTION OF SECURITIES
The Securities will be issued under an indenture (the "Indenture") between
the Company and Harris Trust and Savings Bank, as trustee (the "Indenture
Trustee"). A form of the Indenture has been filed as an exhibit to the
Registration Statement of which this Prospectus is a part and is available for
inspection at the corporate trust office of the Indenture Trustee at 111 West
Monroe Street, Chicago, Illinois 60603. The Indenture will be subject to and
governed by the Trust Indenture Act of 1939, as amended. The statements made
under this heading relating to the Securities and the Indenture are summaries of
the provisions thereof and do not purport to be complete and are qualified in
their entirety by reference to the Indenture and the Securities. All Section
references herein are to Sections of the Indenture, which are incorporated
herein by reference. Capitalized terms used but not defined have the respective
meanings set forth in the Indenture.
GENERAL
The Securities will be direct unsecured obligations of the Company and will
rank equally with all other unsecured and unsubordinated indebtedness of the
Company and senior to all current and future subordinated indebtedness of the
Company. The Securities may be issued in one or more series, in each case as
established from time to time by the Company or as established in the Indenture
or in one or more indentures supplemental to the Indenture. All Securities of
one series need not be issued at the same time and, unless otherwise provided, a
series may be reopened, without the consent of the holders of the Securities of
such series, for issuance of additional Securities of such series (Section 301).
The Indenture provides that there may be more than one Indenture Trustee
thereunder, each with respect to one or more series of Securities. Any Indenture
Trustee under the Indenture may resign or be removed with respect to one or more
series of Securities, and a successor Indenture Trustee may be appointed to act
with respect to such series (Section 608). If two or more persons are acting as
Indenture Trustee with respect to different series of Securities, each such
Indenture Trustee will be an Indenture Trustee of a trust under the Indenture
separate and apart from the trust administered by any other Indenture Trustee
(Section 609). In general, any action to be taken by an Indenture Trustee may be
taken by each such Indenture Trustee with
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<PAGE>
respect to, and only with respect to, the one or more series of Securities for
which it is Indenture Trustee under the Indenture.
The Prospectus Supplement relating to the series of Securities being
offered will contain the specific terms thereof, including:
(a) The designation of such Securities.
(b) The aggregate principal amount of such Securities.
(c) The percentage of the principal amount at which such Securities
will be issued and, if other than the principal amount thereof, the portion
of the principal amount thereof payable upon declaration of acceleration of
the maturity thereof, or the method by which any such portion will be
determined.
(d) The date or dates, or the method for determining such date or
dates, on which the principal of such Securities will be payable.
(e) The rate or rates (which may be fixed or variable), or the method
by which such rate or rates will be determined, at which such Securities
will bear interest.
(f) The date or dates, or the method for determining such date or
dates, from which any such interest will accrue, the dates on which any
such interest will be payable, the record dates for such interest payment
dates, or the method by which such dates will be determined, the persons to
whom such interest will be payable, and the basis upon which interest will
be calculated if other than that of a 360-day year of twelve 30-day months.
(g) The place or places where the principal of (and premium, if any)
and interest on such Securities will be payable, where such Securities may
be surrendered for registration of transfer or exchange and where notices
or demands to or upon the Company in respect of such Securities and the
Indenture may be served.
(h) The period or periods within which, the price or prices at which
and the other terms and conditions upon which such Securities may be
redeemed, as a whole or in part, at the option of the Company, if the
Company is to have such an option.
(i) The obligation, if any, of the Company to redeem, repay or purchase
such Securities pursuant to any sinking fund or analogous provision or at
the option of a holder thereof, and the period or periods within which, the
price or prices at which and the other terms and conditions upon which such
Securities will be redeemed, repaid or purchased, as a whole or in part,
pursuant to such obligation.
(j) If other than U.S. dollars, the currency or currencies in which
such Securities are denominated and payable, which may be another currency
or units of two or
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<PAGE>
more other currencies or a composite currency or currencies, and the terms
and conditions relating thereto.
(k) Whether the amount of payments of principal of (and premium, if
any) or interest on such Securities may be determined with reference to an
index, formula or other method (which index, formula or method may, but
need not, be based on a currency, currencies, currency unit or units or
composite currency or currencies) and the manner in which such amounts will
be determined.
(l) The Events of Default or covenants of such Securities, to the
extent different from those described herein.
(m) Whether such Securities will be issued in certificated or book-
entry form.
(n) Whether such Securities will be in registered or bearer form and,
if in registered form, the denominations thereof if other than $1,000 and
any integral multiple thereof and, if in bearer form, the denominations
thereof and terms and conditions relating thereto.
(o) The applicability, if any, of the defeasance and covenant
defeasance provisions described herein, or any modification thereof.
(p) Whether and under what circumstances the Company will pay any
additional amounts on such Securities in respect of any tax, assessment or
governmental charge and, if so, whether the Company will have the option to
redeem such Securities in lieu of making such payment.
(q) Any other terms, conditions, rights and preferences of such
Securities (Section 301).
The Securities may provide for less than the entire principal amount
thereof to be payable upon declaration of acceleration of the maturity thereof
("Original Issue Discount Securities"). Special United States federal income
tax, accounting and other considerations applicable to Original Issue Discount
Securities will be described in the applicable Prospectus Supplement.
The Prospectus Supplement for each offering of Securities may add to or
change statements contained in this Prospectus. Except as may be set forth in
any Prospectus Supplement, the Securities will not contain any provisions that
would limit the ability of the Company to incur unsecured indebtedness or that
would afford holders of Securities protection in the event of a decline in the
Company's credit quality, a highly leveraged or similar transaction involving
the Company or a change of control. Reference is made to the applicable
Prospectus Supplement for information with respect to any deletions from,
modifications of or additions to the Events of Default or covenants of the
Company that are described below, including any addition of a covenant or other
provision providing event risk or similar protection.
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DENOMINATION, INTEREST, REGISTRATION OR TRANSFER
Unless specified in the applicable Prospectus Supplement, the Securities of
any series will be issuable in denominations of $1,000 and integral multiples
thereof (Section 302).
The principal of (and applicable premium, if any) and interest on any
series of Securities will be payable at the corporate trust office of the
Indenture Trustee, which initially will be Harris Trust and Savings Bank;
provided that, at the option of the Company, payment of interest may be made by
check mailed to the address of the Person entitled thereto as it appears in the
applicable register for such Securities or by wire transfer of funds to such
Person at an account maintained within the United States (Sections 301, 307 and
1002).
Any interest not punctually paid or duly provided for on any interest
payment date with respect to a Security ("Defaulted Interest") will forthwith
cease to be payable to the holder on the applicable Regular Record Date and may
either be paid to the Person in whose name such Security is registered at the
close of business on a special record date (the "Special Record Date") for the
payment of such Defaulted Interest to be fixed by the Indenture Trustee, notice
whereof will be given to the holder of such Security not less than 10 days prior
to such Special Record Date, or may be paid at any time in any other lawful
manner, all as more completely described in the Indenture (Section 307).
Subject to certain limitations imposed upon Securities issued in book-entry
form, the Securities of any series will be exchangeable for other Securities of
the same series and of a like aggregate principal amount and tenor of different
authorized denominations upon surrender of such Securities at the corporate
office of the Indenture Trustee. In addition, subject to certain limitations
imposed upon Securities issued in book-entry form, the Securities of any series
may be surrendered for registration of transfer or exchange thereof at the
corporate trust office of the Indenture Trustee. Every Security surrendered for
registration of transfer or exchange must be duly endorsed or accompanied by a
written instrument of transfer. No service charge will be made for any
registration of transfer or exchange of any Securities, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith (Section 305). If the applicable
Prospectus Supplement refers to any transfer agent (in addition to the Indenture
Trustee) initially designated by the Company with respect to any series of
Securities, the Company may at any time rescind the designation of any such
transfer agent or approve a change in the location through which any such
transfer agent acts, except that the Company will be required to maintain a
transfer agent in each place of payment for such series. The Company may at any
time designate additional transfer agents with respect to any series of
Securities (Section 1002).
Neither the Company nor the Indenture Trustee will be required to (a)
issue, register the transfer of or exchange Securities of any series during a
period beginning at the opening of business 15 days before any selection of
Securities of that series to be redeemed and ending at the close of business on
the day of mailing of the relevant notice of redemption, (b) register the
transfer of or exchange any Security, or portion thereof, called for redemption,
except the unredeemed portion of any Security being redeemed in part, or (c)
issue, register the transfer of or
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<PAGE>
exchange any Security that has been surrendered for repayment at the option of
the holder, except the portion, if any, of such Security not to be so repaid
(Section 305).
MERGER, CONSOLIDATION OR SALE
The Company will be permitted to consolidate with, or sell, lease or convey
all or substantially all of its assets to, or merge with or into, any other
entity, provided that (a) either the Company will be the continuing entity, or
the successor entity (if other than the Company) formed by or resulting from any
such consolidation or merger or which will have received the transfer of such
assets expressly assumes payment of the principal of (and premium, if any) and
interest on all of the Securities and the due and punctual performance and
observance of all of the covenants and conditions contained in the Indenture and
(b) immediately after giving effect to such transaction, no Event of Default
under the Indenture, and no event which, after notice or the lapse of time, or
both, would become such an Event of Default, will have occurred and be
continuing (Sections 801 and 804). With respect to the sale of assets, the
phrase "all or substantially all" as used in the Indenture varies according to
the facts and circumstances of the subject transaction, has no clearly
established meaning under New York law (which governs the Indenture) and is
subject to judicial interpretation. Accordingly, in certain circumstances there
may be a degree of uncertainty in ascertaining whether a particular transaction
would involve a disposition of "all or substantially all" of the assets of a
person, and therefore it may be unclear as to whether a disposition of assets
comes within the terms of this provision.
CERTAIN COVENANTS
Limitation on Liens. The Indenture will provide that the Company will not,
-------------------
and will not permit any Subsidiary of the Company to, incur any Lien on or with
respect to any Principal Property of the Company or any such Subsidiary (whether
such Principal Property is owned on or acquired after the date of the Indenture)
to secure Debt without making, or causing such Subsidiary to make, effective
provision for securing the Securities equally and ratably with (or prior to)
such Debt or, in the event such Debt is subordinate in right of payment to the
Securities, prior to such Debt, as to such Principal Property for so long as
such Debt will be so secured. The foregoing restrictions will not apply to Liens
in respect of Debt existing on the date of the Indenture, to Liens on or with
respect to property that is not Principal Property, or to (a) Liens securing
only Securities; (b) Liens in favor of the Company or any of its Subsidiaries;
(c) Liens on property existing immediately prior to the time of acquisition
thereof (and not created in anticipation of the financing of such acquisition);
(d) Liens to secure Debt incurred for the purpose of financing all or any part
of the purchase price or the cost of construction or improvement of property
used in the business of the Company or any of its Subsidiaries and subject to
such Liens, provided that (i) the principal amount of any Debt secured by such a
Lien does not exceed 100% of such purchase price or cost, (ii) such Lien does
not extend to or cover any other property other than such property and any such
improvements, and (iii) such Debt is incurred within 360 days of such purchase,
construction or improvement; (e) Liens on property of a Person existing at the
time such Person is merged with or into or amalgamated or consolidated with the
Company or any of its Subsidiaries that were not created in anticipation of the
acquisition of such Person, provided that such Lien does not extend to or cover
any property
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<PAGE>
other than that of the Person so merged, amalgamated or consolidated; (f) Liens
on any Principal Property in favor of a governmental body to secure partial
progress, advance or other payments pursuant to any contract or statute of such
governmental body; and (g) Liens to secure Debt incurred to extend, renew,
refinance, replace or refund (or successive extensions, renewals, refinancings,
replacements or refundings), in whole or in part, (i) any secured Debt existing
on the date of this Indenture, or (ii) any Debt secured by any Lien referred to
in the foregoing clauses, so long as in each such case the Lien does not extend
to any other property and the Debt so secured is not increased other than for
reasonable costs related to such extension, renewal, refinancing, replacement or
refunding.
In addition to the foregoing, the Company and its Subsidiaries may incur a
Lien or Liens to secure Debt (excluding Debt secured by Liens permitted under
the foregoing exceptions) the aggregate amount of which, including Attributable
Debt in respect of Sale and Leaseback Transactions, does not exceed 15% of
Consolidated Net Tangible Assets. The Company and its Subsidiaries may also
incur a Lien or Liens to secure any Debt incurred pursuant to a Sale and
Leaseback Transaction, without securing the Securities equally and ratably with
or prior to such Debt, as applicable, provided that such Sale and Leaseback
Transaction is permitted by the provisions of the Indenture described below in
clauses (b) and (c) under "-- Limitation on Sale and Leaseback Transactions"
(Section 1010).
Limitation on Sale and Leaseback Transactions. The Indenture will provide
---------------------------------------------
that the Company will not, and will not permit any Subsidiary of the Company to,
enter into any Sale and Leaseback Transaction with respect to any Principal
Property (except for a period, including renewals, not exceeding 36 months)
unless (a) at the time of entering into such Sale and Leaseback Transaction, the
Company or such Subsidiary would be entitled to incur Debt, in a principal
amount equal to the Attributable Debt in respect of such Sale and Leaseback
Transaction, secured by a Lien, without equally and ratably securing the
Securities; (b) the Company or such Subsidiary applies, within 12 months after
the sale or transfer, an amount equal to the greater of (i) the net proceeds of
the Principal Property sold pursuant to the Sale and Leaseback Transaction, or
(ii) the fair value (in the opinion of an executive officer of the Company) of
such Principal Property to the acquisition of or construction on property used
or to be used in the ordinary course of business of the Company or a Subsidiary
of the Company, and the Company shall have elected to designate such amount as a
credit against such Sale and Leaseback Transaction (with any such amount not
being so designated to be applied as set forth in clause (c) below); or (c) the
Company or such Subsidiary applies, within 12 months after the sale or transfer,
an amount equal to the net proceeds of the Principal Property sold pursuant to
the Sale and Leaseback Transaction to the voluntary defeasance or retirement of
Debt (other than Debt that is held by the Company or a Subsidiary of the Company
or Debt of the Company that is subordinate in right of payment to the
Securities), which amount will not be less than the fair value (in the opinion
of an executive officer of the Company) of such Principal Property (adjusted to
reflect an amount expended by the Company as set forth in clause (b) above) less
an amount equal to the principal amount of such Debt voluntarily defeased or
retired by the Company or such Subsidiary within such 12 month period and not
designated as a credit against any other Sale and Leaseback Transaction entered
into by the Company or any Subsidiary of the Company during such period (Section
1011).
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EVENTS OF DEFAULT, NOTICE AND WAIVER
The Indenture provides that the following events are "Events of Default"
with respect to any series of Securities issued thereunder: (a) default for 30
days in the payment of any installment of interest on any Security of such
series; (b) default in the payment of principal of (or premium, if any) any
Security of such series either at maturity (or upon any redemption), by
declaration or otherwise; (c) default in making any sinking fund payment as
required for any Security of such series; (d) default in the performance or
breach of any other covenant or warranty of the Company contained in the
Securities of such series or set forth in the Indenture (other than a covenant
added to the Indenture solely for the benefit of a series of Securities other
than such series), continued for 60 days after written notice as provided in the
Indenture; (e) acceleration or failure to pay at final maturity any debt of the
Company or any Subsidiary of the Company in an aggregate amount in excess of $25
million; (f) certain events of bankruptcy, insolvency or reorganization, or
court appointment of a receiver, liquidator or trustee of the Company or any
Significant Subsidiary of the Company; and (g) any other Event of Default
provided with respect to a particular series of Securities (Section 501).
If an Event of Default under the Indenture with respect to Securities of
any series at the time outstanding occurs and is continuing, then in every such
case the Indenture Trustee or the holders of not less than 25% in principal
amount of the outstanding Securities of that series will have the right to
declare the principal amount (or, if the Securities of that series are Original
Issue Discount Securities or Indexed Securities, such portion of the principal
amount as may be specified in the terms thereof) of all the Securities of that
series to be due and payable immediately by written notice thereof to the
Company (and to the Indenture Trustee if given by the holders). However, at any
time after such a declaration of acceleration with respect to Securities of such
series (or of all Securities then outstanding under the Indenture, as the case
may be) has been made, but before a judgment or decree for payment of the money
due has been obtained by the Indenture Trustee, the holders of not less than a
majority in principal amount of outstanding Securities of such series (or of all
Securities then outstanding under the Indenture, as the case may be) may rescind
and annul such declaration and its consequences if (a) the Company deposits with
the Indenture Trustee all required payments of the principal of (and premium, if
any) and interest on the Securities of such series (or of all Securities then
outstanding under the Indenture, as the case may be), plus certain fees,
expenses, disbursements and advances of the Indenture Trustee, and (b) all
Events of Default, other than the non-payment of accelerated principal (or
specified portion thereof), with respect to Securities of such series (or of all
Securities then outstanding under the Indenture, as the case may be) are cured
or waived as provided in the Indenture (Section 502). The Indenture also
provides that the holders of not less than a majority in principal amount of the
outstanding Securities of any series (or of all Securities then outstanding
under the Indenture, as the case may be) may waive any past default with respect
to such series and its consequences, except a default (a) in the payment of the
principal of (or premium, if any) or interest on any Security of such series, or
(b) under a covenant or provision contained in the Indenture that cannot be
modified or amended without the consent of the holder of each outstanding
Security affected thereby (Section 513).
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The Indenture Trustee will be required to give notice to the holders of
Securities within 90 days of default under the Indenture unless such default is
cured or waived; provided that such Indenture Trustee may withhold notice to the
holders of any series of Securities of any default with respect to such series
(except a default in the payment of the principal of (or premium, if any) or
interest on any Security of such series or in payment of any sinking fund
installment in respect of any Security of such series) if specified responsible
officers of such Indenture Trustee consider such withholding to be in the
interest of such holders
The Indenture provides that no holders of Securities of any series may
institute any proceedings, judicial or otherwise, with respect to the Indenture
or for any remedy thereunder, except in the cases of failure of the Indenture
Trustee, for 60 days, to act after it has received a written request to
institute proceedings in respect of an Event of Default from the holders of not
less than 25% in principal amount of the outstanding Securities of such series
(Section 507). This provision will not prevent, however, any holder of
Securities from instituting suit for the enforcement of payment of the principal
of (and premium, if any) and interest on such Securities at the due dates
thereof.
Subject to provisions in the Indenture relating to its duties in case of
default, the Indenture Trustee will not be under any obligation to exercise any
of its rights or powers under the Indenture at the request of direction of any
holders of any series of Securities then outstanding under such Indenture,
unless such holders offer to the Indenture Trustee reasonable security or
indemnity. The holders of not less than a majority in principal amount of the
outstanding Securities of any series (or of all Securities then outstanding
under the Indenture, as the case may be) will have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Indenture Trustee, or of exercising any trust or power conferred upon such
Indenture Trustee. However, an Indenture Trustee may refuse to follow any
direction which is in conflict with any law or the Indenture, which may involve
the Indenture Trustee in personal liability or which may be unduly prejudicial
to the holders of Securities of such series not joining therein (Section 512).
Within 120 days after the close of each fiscal year, the Company will be
required to deliver to the Indenture Trustee a certificate, signed by one of
several specified officers of the Company, stating whether or not such officer
has knowledge of any default under the Indenture and, if so, specifying each
such default and the nature and status thereof (Section 1009).
MODIFICATION OF THE INDENTURE
Modifications and amendments of the Indenture will be permitted to be made
only with the consent of the holders of not less than a majority in principal
amount of all outstanding Securities issued under the Indenture which are
affected by such modification or amendment; provided that no such modification
or amendment may, without the consent of the holder of each Security affected
thereby, (a) change the stated maturity of the principal of (or premium, if
any), or any installment of interest on any Security; (b) reduce the principal
amount of any Security, or reduce the amount of principal of an Original Issue
Discount Security that would be due and payable upon declaration of acceleration
of the maturity thereof or would be provable in
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bankruptcy, or adversely affect any right of repayment of the holder of any such
Security; (c) change the place of payment, or the coin or currency, for payment
of principal of (or premium, if any) or interest on any Security; (d) impair the
right to institute suit for the enforcement of any payment on or with respect to
any Security; (e) reduce the above-stated percentage of outstanding Securities
of any series necessary to modify or amend the Indenture, to waive compliance
with certain provisions thereof or certain defaults and consequences thereunder
or to reduce the quorum or voting requirements set forth in the Indenture; or
(f) modify any of the foregoing provisions or any of the provisions relating to
the waiver of certain past defaults or certain covenants, except to increase the
required percentage to effect such action or to provide that certain other
provisions may not be modified or waived without the consent of the holder of
such Security (Section 902).
The holders of not less than a majority in principal amount of outstanding
Securities issued under the Indenture will have the right to waive compliance by
the Company with certain covenants in the Indenture (Section 1013).
Modifications and amendments of the Indenture will be permitted to be made
by the Company and the Indenture Trustee thereunder without the consent of any
holder of Securities for any of the following purposes: (a) to evidence the
succession of another person to the Company as obligor under the Indenture; (b)
to add to the covenants of the Company for the benefit of the holders of all or
any series of Securities or to surrender any right or power conferred upon the
Company in the Indenture; (c) to add Events of Default for the benefit of the
holders of all or any series of Securities; (d) to add or change any provisions
of the Indenture to facilitate the issuance of, or to liberalize certain terms
of, Securities in bearer form, or to permit or facilitate the issuance of
Securities in uncertificated form, provided that such action will not adversely
affect the interests of holders of the Securities in any material respect; (e)
to change or eliminate any provisions of the Indenture, provided that any such
change or elimination will become effective only when there are no Securities
outstanding of any series created prior thereto which are entitled to the
benefit of such provision; (f) to secure the Securities; (g) to establish the
form or terms of Securities of any series; (h) to provide for the acceptance of
appointment by a successor Indenture Trustee or facilitate the administration of
the trusts under the Indenture by more than one Indenture Trustee; (i) to cure
any ambiguity, defect or inconsistency in the Indenture, provided that such
action will not adversely affect the interests of holders of Securities of any
series issued under such Indenture in any material respect; or (j) to supplement
any of the provisions of the Indenture to the extent necessary to permit or
facilitate defeasance and discharge of any series of such Securities, provided
that such action will not adversely affect the interests of the holders of the
Securities of any series in any material respect (Section 901).
The Indenture will provide that in determining whether the holders of the
requisite principal amount of outstanding Securities of a series have given any
request, demand, authorization, direction, notice, consent or waiver thereunder
or whether a quorum is present at a meeting of holders of Securities, (a) the
principal amount of an Original Issue Discount Security that is deemed to be
outstanding will be the amount of the principal thereof that would be due and
payable as of the date of such determination upon declaration of acceleration of
the maturity thereof, (b) the principal amount of any Security denominated in a
currency other than U.S.
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dollars that will be deemed outstanding will be the U.S. dollar equivalent,
determined on the issue date for such Security, of the principal amount (or, in
the case of Original Issue Discount Security, the U.S. dollar equivalent on the
issue date of such Security of the amount determined as provided in (a) above),
(c) the principal amount of an Indexed Security that will be deemed outstanding
will be the principal face amount of such Indexed Security at original issuance,
unless otherwise provided with respect to such Indexed Security in the
Indenture, and (d) Securities owned by the Company or any other obligor upon the
Securities or any Subsidiary of the Company or of such other obligor will be
disregarded (Section 101).
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
The Indenture provides that the Company may elect either (a) to defease and
be discharged from any and all obligations with respect to the Securities or a
series (except for the obligation to pay additional amounts, if any, upon the
occurrence of certain events of tax, assessment or governmental charge with
respect to payments on such Securities and the obligations to register the
transfer or exchange of such Securities, to replace temporary or mutilated,
destroyed, lost or stolen Securities, to maintain an office or agency in respect
of such Securities and to hold moneys for payment in trust) ("defeasance")
(Section 1402), or (b) to be released from its obligations with respect to such
Securities under the restrictions described under "-- Certain Covenants" or, if
provided pursuant to the Indenture, its obligations with respect to any other
covenant, and any omission to comply with such obligations will not constitute
an Event of Default with respect to such Securities ("covenant defeasance")
(Section 1403), in either case upon the irrevocable deposit by the Company with
the Indenture Trustee, in trust, of an amount, in such currency in which such
Securities are payable at stated maturity, or Government Obligations, or both,
applicable to such Securities which through the scheduled payment of principal
and interest in accordance with their terms will provide money in an amount
sufficient to pay the principal of (and premium, if any) and interest on such
Securities, and any mandatory sinking fund or analogous payments thereon, on the
scheduled due dates therefore (Section 1404).
Such a trust will only be permitted to be established if, among other
things, the Company has delivered to the Indenture Trustee an opinion of counsel
to the effect that the holders of such Securities will not recognize income,
gain or loss for United States federal income tax purposes as a result of such
defeasance or covenant defeasance and will be subject to United States federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such defeasance or covenant defeasance had not
occurred, and such opinion of counsel, in the case of defeasance, will be
required to refer to and be based upon a ruling of the Internal Revenue Service
or a change in applicable United States federal income tax law occurring after
the date of the Indenture (Section 1404).
If after the Company has deposited funds and/or Government Obligations to
effect defeasance or covenant defeasance with respect to Securities of any
series, (a) the holder of a Security of such series is entitled to, and does,
elect pursuant to the Indenture or the terms of such Security to receive payment
in a currency, currency unit or composite currency other than that in which such
deposit has been made in respect of such Security, or (b) a Conversion Event
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(as defined below) occurs in respect of the currency, currency unit or composite
currency in which such deposit has been made, the indebtedness represented by
such Security will be deemed to have been, and will be, fully discharged and
satisfied though the payment of the principal of (and premium, if any) and
interest on such Security as they become due out of the proceeds yielded by
converting the amount so deposited in respect of such Security into the
currency, currency unit or composite currency in which such Security becomes
payable as a result of such election based on the applicable market exchange
rate. "Conversion Event" means the cessation of use of (a) a currency, currency
unit or composite currency both by the government of the country which issued
such currency and for the settlement of transactions by a central bank or other
public institution of or within the international banking community, (b) the
ECU, both within the European Monetary System and for the settlement of
transactions by public institutions of or within the European Communities, or
(c) any currency unit or composite currency other than the ECU for the purposes
for which it was established. All payments of principal of (and premium, if any)
and interest on any Security that is payable in a currency other than U.S.
dollars that ceases to be used by its government of issuance will be in U.S.
dollars (Section 101).
The Indentures provide that the Company will file with the Trustee copies
of the annual reports and other information, documents and reports which the
Company is required to file with the Commission pursuant to the Exchange Act.
If the Company is not required to file such reports and other information, the
Indentures provide that the Company shall file with the Trustee and cause to be
mailed to the holders of Securities (i) annual reports containing the
information required to be contained in an Annual Report on Form 10-K, (ii)
quarterly reports containing the information required to be contained in a
Quarterly Report on Form 10-Q and (iii) promptly after the occurrence of any
event required to be therein reported, such other reports containing information
required to be contained in a Current Report on Form 8-K. The Company shall
also comply with the requirements of Trust Indenture Act 314(a).
GLOBAL SECURITIES
The Securities of a series may be issued in whole or in part in the form of
one or more global securities (the "Global Securities") that will be deposited
with, or on behalf of, a depositary identified in the applicable Prospectus
Supplement relating to such series. The Global Securities may be issued in
either registered or bearer form and in either temporary or permanent form. The
specific terms of the depositary arrangement with respect to a series of
Securities will be described in the applicable Prospectus Supplement relating to
such series.
CERTAIN DEFINITIONS
Set forth below is a summary of certain of the defined terms used in the
Indenture. Reference is made to the Indenture for the full definition of all
such terms, as well as other terms used herein for which no definition is
provided (Section 101).
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the
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power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Attributable Debt" means, with respect to any Sale and Leaseback
Transaction as of any particular time, the present value (discounted at the rate
of interest implicit in the terms of the lease) of the obligations of the lessee
under such lease for net rental payments during the remaining term of the lease
(including any period for which such lease has been extended). "Net rental
payments" under any lease for any period means the sum of the rental and other
payments required to be paid in such period by the lessee thereunder, not
including, however, any amounts required to be paid by such lessee (whether or
not designated as rental or additional rental) on account of maintenance and
repairs, insurance, taxes, assessments or similar charges.
"Capital Stock" means, with respect to any Person, any capital stock
(including preferred stock), shares, interests, participations or other
ownership interests (however designated) of such Person and any rights (other
than debt securities convertible or exchangeable for corporate stock), warrants
or options to purchase any thereof.
"Consolidated Net Tangible Assets" of the Company means, at any date, the
gross book value as shown by the accounting books and records of the Company of
all property both real and personal of the Company and its Subsidiaries,
determined on a consolidated basis in accordance with GAAP, (including
appropriate deductions for any minority interests in property of Subsidiaries of
the Company) less (a) the gross book value of all its licenses, patents, patent
applications, copyrights, trademarks, trade names, goodwill, non-compete
agreements or organizational expenses and other like intangibles, (b)
unamortized Debt discount and expense, (c) all reserves for depreciation,
obsolescence, depletion and amortization of its properties, and (d) all other
proper reserves which in accordance with GAAP should be provided in connection
with the business conducted by the Company or its Subsidiaries.
"Debt" of the Company or any Subsidiary means any indebtedness of the
Company or any Subsidiary, whether or not contingent, in respect of (without
duplication) (a) borrowed money, whether or not evidenced by bonds, notes,
debentures or similar instruments, (b) indebtedness secured by any Lien existing
on property owned by the Company or any Subsidiary, (c) the reimbursement
obligations, contingent or otherwise, in connection with any letters of credit
actually issued or amounts representing the balance deferred and unpaid of the
purchase price of any property or services (except any such balance that
constitutes an accrued expense or trade payable or accrued liabilities arising
in the ordinary course of business that are not overdue or are being contested
in good faith) or all conditional sale obligations or obligations under any
title retention agreement, (d) the principal amount of all obligations of the
Company or any Subsidiary with respect to redemption, repayment or other
repurchase of any Disqualified Stock, or (e) any lease of property by the
Company or any Subsidiary as lessee which is reflected on the Company's
consolidated balance sheet as a capitalized lease in accordance with GAAP to the
extent, in the case of items of indebtedness under (a) through (c) above, that
any such items (other than letters of credit) would appear as a liability on the
Company's consolidated balance sheet in accordance with GAAP, and also includes,
to the extent not otherwise included, any obligation by the
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Company or any Subsidiary to be liable for, or to pay, as obligor, guarantor or
otherwise (other than for purposes of collection in the ordinary course of
business), Debt of another Person (other than the Company or any Subsidiary).
"Disqualified Stock" means, with respect to any Person, any Capital Stock
of such Person which by the terms of such Capital Stock (or by the terms of any
security into which it is convertible or for which it is exchangeable or
exercisable), upon the happening of any event or otherwise, (a) matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, (b)
is convertible into or exchangeable or exercisable for Debt or Disqualified
Stock, or (c) is redeemable at the option of the holder thereof, in whole or in
part, in each case on or prior to the Stated Maturity of the series of
Securities.
"GAAP" means generally accepted accounting principles, as in effect from
time to time, in the United States, applied on a consistent basis.
"Government Obligations" means securities which are (a) direct obligations
of the United States of America or the government which issued the other
currency in which the Securities of a particular series are payable, for the
payment of which its full faith and credit is pledged, or (b) obligations of a
person controlled or supervised by and acting as an agency or instrumentality of
the United States of America or the government which issued the other currency
in which the Securities of such series are payable, the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America or such other government, which, in either case, are not
callable or redeemable at the option of the issuer thereof, and will also
include a depository receipt issued by a bank or trust as custodian with respect
to any such Government Obligation or a specific payment of interest on or
principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced by such
depository receipt.
"Issue Date" means the date upon which a series of Securities was first
issued and authenticated under the Indenture.
"Lien" means any mortgage, charge, security interest, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
other) or preference, priority or other security agreement except: (a) liens for
taxes, assessments, levies and other governmental charges, including utility
charges and vault rentals, (i) which are not yet delinquent, or (ii) which are
being contested in good faith by all appropriate proceedings; (b) carriers',
warehousemen's, mechanics', materialmen's, repairmen's, brokers' or other like
liens (i) which do not remain unsatisfied or undischarged for a period of more
than 90 days, or (ii) which are being contested in good faith by all appropriate
proceedings; (c) attachment or judgment liens not giving rise to or an Event of
Default and which are being contested in good faith by appropriate proceedings;
(d) pledges or deposits in connection with workers compensation, unemployment
insurance and
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other social security legislation and deposits securing liability to insurance
carriers under insurance or self-insurance arrangements or to obtain the benefit
of, or to comply with, laws; (e) deposits to secure the performance of bids,
trade contracts (other than for borrowed money), leases, statutory obligations,
surety and appeal bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business; (f) any lien incurred in
connection with pollution control, tax-exempt, industrial revenue or similar
financing; and (g) easements, rights of way, restrictions, development orders,
plats and other similar encumbrances. "Person" means any individual,
corporation, partnership, limited liability company, joint venture, association,
joint-stock company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Principal Property" means (a) any real property interest (all such
interests forming an integral part of a single development or operation being
considered as one interest), including any mining claims and leases, and any
plants, buildings or other improvements thereon, and any part thereof, that is
held by the Company or any Subsidiary and has a gross book value (without
deduction of any reserve for depreciation), on the date as of which the
determination is being made, exceeding 5% of Consolidated Net Tangible Assets of
the Company (other than any such interest that the board of directors of the
Company determines by resolution is not material to the business of the Company
and its Subsidiaries taken as a whole), or (b) any of the Capital Stock or debt
securities issued by any Significant Subsidiary.
"Sale and Leaseback Transaction" of any Person means an arrangement with
any lender or investor or to which such lender or investor is a party providing
for the leasing by such Person of any property or asset of such Person which has
been or is being sold or transferred by such Person more than 270 days after the
acquisition thereof or the completion of construction or commencement of
operation thereof to such lender or investor or to any Person to whom funds have
been or are to be advanced by such lender or investor on the security of such
property or asset. The stated maturity of such arrangement is the date of the
last payment of rent or any other amount due under such arrangement prior to the
first date on which such arrangement may be terminated by the lessee without
payment of a penalty.
"Significant Subsidiary" means any Subsidiary which is a "significant
subsidiary" (as defined in Rule 1-02 of Regulation S-X, promulgated by the
Commission) of the Company.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"Subsidiary" means an entity a majority of the partnership interests or a
majority of the outstanding voting stock of which is owned, directly or
indirectly, by the Company and/or one or more other Subsidiaries of the Company.
For the purposes of this definition, "voting stock" means stock having 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.
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CERTAIN INCOME TAX CONSIDERATIONS
The applicable Prospectus Supplement also will describe the principal
United States federal income tax considerations applicable to a United States
Investor of acquiring, owning and disposing of Securities, including any such
considerations relating to (a) principal (and premium, if any) and interest
payable with respect to the Securities, in a currency other than the United
States dollar, (b) the issuance of Securities with "original issue discount" (as
defined for United States federal income tax purposes), if applicable, and (c)
the inclusion of any special terms in Securities that may have a material effect
for United States federal income tax purposes.
PLAN OF DISTRIBUTION
GENERAL
The Company may sell the Securities being offered hereby: (i) directly to
purchasers; (ii) through agents; (iii) through dealers; (iv) through
underwriters; or (v) through a combination of any such methods of sale.
The distribution of the Securities may be effected from time to time in one
or more transactions either: (i) at a fixed price or prices which may be
changed; (ii) at market prices prevailing at the time of sale; (iii) at prices
related to such prevailing market prices; or (iv) at negotiated prices.
Offers to purchase Securities may be solicited directly by the Company.
Offers to purchase Securities may also be solicited by agents designated by the
Company from time to time. Any such agent, who may be deemed to be an
"underwriter" as that term is defined in the Securities Act, involved in the
offer or sale of the Securities in respect of which this Prospectus is delivered
will be named, and any commissions payable by the Company to such agent will be
set forth, in the Prospectus Supplement.
If a dealer is utilized in the sale of the Securities in respect of which
this Prospectus is delivered, the Company will sell such Securities to the
dealer, as principal. The dealer, who may be deemed to be an "underwriter" as
that term is defined in the Securities Act may then resell such Securities to
the public at varying prices to be determined by such dealer at the time of
resale.
If an underwriter or underwriters are utilized in the sales, the Company
will execute an underwriting agreement with such underwriters at the time of
sale of them and the name of the underwriters will be set forth in the
Prospectus Supplement, which will be used by the underwriters to make resales of
the Securities in respect of which this Prospectus is delivered to the public.
Underwriters, dealers, agents and other persons may be entitled, under
agreements that may be entered into with the Company, to indemnification by the
Company against certain civil liabilities, including liabilities under the
Securities Act.
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DELAYED DELIVERY ARRANGEMENTS
If so indicated in the Prospectus Supplement, the Company will authorize
underwriters, dealers or other persons to solicit offers by certain institutions
to purchase Securities pursuant to contracts providing for payment and delivery
on a future date or dates. Institutions with which such contracts may be made
include commercial and savings banks, insurance companies, pension funds,
investment companies, educational and charitable institutions and others. The
obligations of any purchaser under any such contract will not be subject to any
conditions that (a) the purchase of the Securities shall not at the time of
delivery be prohibited under the laws of the jurisdiction to which such
purchaser is subject and (b) if the Securities are also being sold to
underwriters, the Company shall have sold to such underwriters the Securities
not sold for delayed delivery. The underwriters, dealers and such other persons
will not have any responsibility in respect to the validity or performance of
such contracts.
LEGAL MATTERS
The legality of the Securities offered hereby will be passed upon for the
Company by Hughes & Luce, L.L.P.
EXPERTS
The audited consolidated financial statements incorporated by reference in
this Prospectus have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their report with respect thereto, and are included
in reliance upon the authority of said firm as experts in giving said report.
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SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This Prospectus includes and incorporates by reference and related
Prospectus Supplements may include certain statements that may constitute
"forward-looking" information (as defined in the Private Securities Litigation
Reform Act of 1995). Words such as "anticipate", "estimate", "project" and
similar expressions are intended to identify such forward-looking statements.
Forward-looking statements may be included in this Prospectus in, among other
places, under "The Company" and "Use of Proceeds" and in certain portions of the
Company's Annual Report on Form 10-K and subsequent reports incorporated herein
by reference. Such forward-looking statements may include, but are not limited
to statements concerning estimates of current and future results of operations,
earnings, the development of new production facilities, future capacity under
the Company's credit arrangements, and future capital expenditure and liquidity
requirements.
Such forward-looking statements are subject to certain risks, uncertainties
and assumptions, including without limitation those discussed under "Outlooks
and Uncertainties" in the Company's Annual Report on Form 10-K incorporated
herein by reference and the following: the volatility of fertilizer demand and
prices, the cyclicality and seasonality of the Company's business, the Company's
dependence on natural gas, the costs of compliance with and the possibility of
additional environmental laws regulating the fertilizer business, and the
competitive nature of the fertilizer business. Should one or more of these
risks materialize, or should any of the underlying assumptions prove incorrect,
actual results of current and future operations may vary materially from those
anticipated, estimated or projected. Prospective investors are cautioned not to
place undue reliance on these forward-looking statements, which speak only as of
their dates. The Company assumes no obligation to update any such forward-
looking statements.
TABLE OF CONTENTS
Page
Available Information........................................... 2
Incorporation of Certain Documents by Reference................. 3
The Company..................................................... 4
Ratio of Earnings to Fixed Charges.............................. 4
Use of Proceeds................................................. 5
Description of Securities....................................... 5
Certain Income Tax Considerations............................... 19
Plan of Distribution............................................ 19
Legal Matters................................................... 20
Experts......................................................... 20
Special Note Regarding Forward-Looking Statements............... 21
21
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<S> <C> <C>
Securities and Exchange Commission registration fee $ 90,909
* Printing and engraving 35,000
* Legal fees and charges 60,000
* Trustees' fees and expenses 14,000
* Accounting services 25,000
* Rating agency fees 175,000
* Miscellaneous 10,000
--------
$409,909
========
</TABLE>
_______________
* Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Mississippi law, a corporation may indemnify directors and officers
against liability incurred in a proceeding if (a) he or she conducted himself or
herself in good faith; (b) he or she reasonably believed that his or her conduct
was (i) in the corporation's best interests (where the conduct was in his or her
official capacity) or (ii) not opposed to the corporation's best interests (in
all other cases); and (c) in the case of any criminal proceeding, he or she had
no reasonable cause to believe his or her conduct was unlawful. However,
Mississippi law provides that a corporation may not indemnify a director or an
officer (a) in connection with a proceeding by or in the right of the
corporation in which the director or officer was adjudged liable to the
corporation or (b) in connection with any other proceeding charging improper
personal benefit to such director or officer, whether or not involving action in
his or her official capacity, in which such director or officer was adjudged
liable on the basis that personal benefit was improperly received by him or her.
Under Mississippi law, a corporation must indemnify a director or officer who
was wholly successful, on the merits or otherwise, in the defense of any
proceeding to which such director or officer was a party because he or she is or
was a director or officer of the corporation against reasonable expenses
incurred by such director or officer in connection with the proceeding.
The Company has obtained a directors' and officers' liability and
corporation reimbursement policy which (subject to certain limits and
deductibles) (i) insures officers and directors of the Company against loss
arising from certain claims made against them by reason of their being directors
or officers, and (ii) insures the Company against loss which it may be required
or permitted to pay as indemnification due its directors for certain claims.
<PAGE>
Insofar as indemnification by the Company for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or persons
controlling the Company pursuant to the foregoing provisions, the Company has
been informed that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is therefore unenforceable.
ITEM 16. EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
--------- -----------------------
1 Underwriting Agreement*
2.1 Asset Purchase Agreement, dated as of May 21, 1996, by and
among the Company, Mississippi Acquisition I, Inc.,
Mississippi Acquisition II, Inc., Eddy Potash, Inc., and
New Mexico Potash Corporation; filed as Exhibit 2.1 to the
Company's Current Report on Form 8-K filed September 3,
1996, SEC File No. 0-20411, and incorporated herein by
reference.
2.2 Agreement and Plan of Merger and Reorganization dated as of
August 27, 1996, by and among the Company, MISS SUB, INC.,
and First Mississippi Corporation filed as Exhibit 2.2 to
the Company's Annual Report on Form 10-K for the year ended
June 30, 1996, SEC File No. 0-20411, and incorporated
herein by reference.
4.1 Form of Indenture*
4.2 Credit Agreement, dated December 23, 1996, among the
Company, Mississippi Phosphates Corporation, Mississippi
Potash, Inc., and Harris Trust and Savings Bank, as
administrative agent, Bank of Montreal as syndication
agent, Caisse Nationale de Credit Agricole and CIBC Inc.,
as co-agents, and other lenders party thereto filed as
Exhibit 10.2 to the Company's Current Report on Form 8-K,
filed on January 3, 1997, SEC File No. 0-20411, and
incorporated herein by reference.
4.3 Credit Agreement, dated December 23, 1996, among First
Mississippi Corporation, AMPRO Fertilizer, Inc., and Harris
Trust and Savings Bank, as administrative agent, Bank of
Montreal as syndication agent, Caisse Nationale de Credit
Agricole and CIBC Inc., as co-agents, and other lenders
party thereto filed as Exhibit 10.1 to the Company's
Current Report of Form 8-K, filed on January 3, 1997, SEC
File No. 0-20411, and incorporated herein by reference.
<PAGE>
The registrant hereby undertakes to file with the
Commission, upon request, copies of any constituent
instruments defining the rights of holders of long-term
debt of the registrant or its subsidiaries that have not
been filed herewith because the amounts represented thereby
are less than 10% of the total assets of the registrant and
its subsidiaries on a consolidated basis.
5 Opinion of Hughes & Luce, L.L.P. with respect to the
legality of the securities being registered*
12 Statement regarding computation of ratios
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Hughes & Luce, L.L.P. (included in Exhibit 5)*
24 Power of Attorney, included in signature pages hereto
25 Statement of Eligibility of Trustee on Form T-1*
_______________
* To be filed by amendment or as an exhibit to a document to be
incorporated by reference herein in connection with any underwritten offering of
a Security.
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(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 amount of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated offering range may be
reflected in the form of a prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price represent
no more than a 20 percent change in
<PAGE>
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.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at the time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of
the Exchange Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel in the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement has been signed by or on behalf of the undersigned, thereunto duly
authorized, in the City of Yazoo City, State of Mississippi, on October 23,
1997.
MISSISSIPPI CHEMICAL CORPORATION
By: /s/ Timothy A. Dawson
---------------------
Timothy A. Dawson
Vice-President-Finance
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Timothy A. Dawson and Robert E. Jones his or her true and lawful attorney-in-
fact and agent, each acting alone, with full power of substitution and
resubstitution for him or her and in his or her name, place and stead, in any
and all capacities, to sign any or all Amendments (including post-effective
Amendments) to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, each acting alone, full power and authority to do and perform each and
every act and thing appropriate or necessary to be done in connection therewith,
as fully to all intents and purposes as he or she might or could do in person
hereby ratifying and confirming all that said attorney-in-fact and agent, acting
alone, or his or her 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 dates indicated:
/s/ Charles O. Dunn Director, President October 23, 1997
- --------------------- and Chief Executive Officer
Charles O. Dunn (principal executive officer)
/s/ Timothy A. Dawson Vice-President Finance October 23, 1997
- ---------------------- (principal financial and
Timothy A. Dawson accounting officer)
/s/ Coley L. Bailey Director, Chairman of the Board October 23, 1997
- ----------------------
Coley L. Bailey
<PAGE>
/s/ John Sharp Howie Director, Vice Chairman October 23, 1997
- -------------------------- of the Board
John Sharp Howie
/s/ John W. Anderson Director October 23, 1997
- --------------------------
John W. Anderson
/s/ Haley Barbour Director October 23, 1997
- --------------------------
Haley Barbour
/s/ Frank R. Burnside, Jr. Director October 23, 1997
- --------------------------
Frank R. Burnside, Jr.
/s/ Robert P. Dixon Director October 23, 1997
- --------------------------
Robert P. Dixon
/s/ W. R. Dyess Director October 23, 1997
- --------------------------
W. R. Dyess
/s/ Woods E. Eastland Director October 23, 1997
- --------------------------
Woods E. Eastland
/s/ George D. Penick, Jr. Director October 23, 1997
- --------------------------
George D. Penick, Jr.
/s/ David M. Ratcliffe Director October 23, 1997
- --------------------------
David M. Ratcliffe
/s/ Wayne Thames Director October 23, 1997
- --------------------------
Wayne Thames
<PAGE>
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
1997 1996 1995 1994 1993
------------------------------------------------------------------------------------
Earnings:
<S> <C> <C> <C> <C> <C>
Income from continuing operations $ 90,587 $ 88,493 $ 81,408 $ 32,933 $ 26,378
Adjustments
Fixed charges, as below 10,081 1,207 $ 2,465 $ 5,061 $ 6,375
Interest capitalized (3,858) (10) (231) (2) (1,027)
------------------------------------------------------------------------------------
Earnings as adjusted $ 96,810 $ 89,690 $ 83,642 $ 37,992 $ 31,726
========= ========= ========= ========= =========
Fixed charges:
Interest on indebtedness, expensed or
capitalized $ 8,942 $ 715 $ 2,021 $ 4,655 $ 5,994
Portion of rent expense representative
of the interest factor 1,139 492 444 406 381
------------------------------------------------------------------------------------
Total fixed charges $ 10,081 $ 1,207 $ 2,465 $ 5,061 $ 6,375
========= ========= ========= ========= =========
Ratio of earnings to fixed charges 9.60 74.31 33.93 7.51 4.98
====================================================================================
Ration of earnings to fixed charges
(including discontinued operations) 2.37 2.03
==================================
</TABLE>
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-3 of our report dated July
25, 1997, included in the Company's annual report and incorporated by reference
in the Company's Form 10-K for the year ended June 30, 1997, and to all
references to our Firm included in this registration statement. We also consent
to the reference to our Firm under the caption "Experts."
/s/ ARTHUR ANDERSEN LLP
Memphis, Tennessee
October 23, 1997
