<PAGE>
As filed with the Securities and Exchange Commission on September 4, 1998
REGISTRATION NO. 333-59627
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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NATIONAL SERVICE INDUSTRIES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 58-0364900
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION
INCORPORATION OR ORGANIZATION) NO.)
1420 PEACHTREE STREET, N.E.
ATLANTA, GEORGIA 30309-3002
(404) 853-1000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
KENYON W. MURPHY
VICE PRESIDENT AND ASSOCIATE COUNSEL
1420 PEACHTREE STREET, N.E.
ATLANTA, GA 30309-3002
(404) 853-1000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
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COPIES TO:
JEFFREY M. STEIN JOHN W. WHITE
KING & SPALDING CRAVATH, SWAINE & MOORE
191 PEACHTREE STREET WORLDWIDE PLAZA, 825 EIGHTH AVENUE
ATLANTA, GEORGIA 30303-1763 NEW YORK, NEW YORK 10019
(404) 572-4600 --------------- (212) 474-1000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after this Registration Statement becomes effective as determined by
market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, please check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [X]
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
TITLE OF CLASS OF PROPOSED MAXIMUM PROPOSED MAXIMUM
SECURITIES TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
REGISTERED UNIT PRICE(1)(2) REGISTRATION FEE
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<S> <C> <C> <C>
Debt Securities(3)......
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Common Stock(3).........
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Preferred Stock(3)......
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Warrants(3).............
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Total................... $400,000,000 $118,000(4)
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</TABLE>
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(1) In no event will the aggregate maximum offering price of all securities
registered under this Registration Statement exceed $400,000,000. Such
amount includes any consideration to be received for Securities issued
upon exercise of the Warrants. Any securities registered hereunder may be
sold separately or as units with other securities registered hereunder.
(2) The proposed maximum offering price per unit (a) has been omitted pursuant
to Instruction II.D. of Form S-3 and (b) will be determined, from time to
time, by the Registrant in connection with the issuance by the Registrant
of the securities registered hereunder.
(3) Subject to footnote (1), there is being registered hereunder an
indeterminate number of shares of Common Stock, Preferred Stock, Warrants
and Debt Securities as may be sold, from time to time, by National Service
Industries, Inc. National Service Industries, Inc. also is registering
hereunder an indeterminate number of shares of Common Stock, Preferred
Stock and Debt Securities as may be issued upon conversion or exchange of
any Debt Securities or Preferred Stock or upon exercise of the Warrants
registered hereby. If any Debt Securities are being 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 not to
exceed $400,000,000, less the dollar amount of any securities previously
issued hereunder. In no event will the aggregate initial offering price of
all securities issued from time to time pursuant to this Registration
Statement exceed $400,000,000, or its equivalent if some or all of the
securities are denominated in one or more foreign currencies.
(4) The fee has previously been paid.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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<PAGE>
SUBJECT TO COMPLETION, DATED SEPTEMBER 4, 1998
PROSPECTUS
NATIONAL SERVICE INDUSTRIES, INC.
[LOGO] DEBT SECURITIES
PREFERRED STOCK
WARRANTS
COMMON STOCK
National Service Industries, Inc. (the "Company") may offer from time to
time: (i) its unsecured debt securities ("Debt Securities") consisting of
debentures, notes and/or other evidences of unsecured indebtedness in one or
more series, which may be either senior ("Senior Securities") or subordinated
("Subordinated Securities") and which may be convertible into or exchangeable
for shares of its common stock, par value $1.00 per share ("Common Stock"),
shares of its preferred stock, no par value ("Preferred Stock"), or other Debt
Securities, (ii) Preferred Stock, which may be convertible into or exchangeable
for shares of Common Stock or shares of Preferred Stock or Debt Securities;
(iii) warrants to purchase shares of Preferred Stock (the "Preferred Stock
Warrants") or Debt Securities (the "Debt Warrants"); and (iv) Common Stock
issuable upon the conversion or exchange of Debt Securities or Preferred Stock
offered hereunder, to the extent such Debt Securities or Preferred Stock are,
by their terms, convertible into or exchangeable for shares of Common Stock, in
amounts, at prices and on terms to be determined by market conditions at the
time of offering. The Debt Warrants and Preferred Stock Warrants are
collectively referred to herein as the "Warrants" and the Debt Securities,
Preferred Stock, Common Stock and Warrants are collectively referred to herein
as the "Securities."
The Securities may be issued in one or more series or issuances and will be
limited to $400,000,000 in aggregate public offering price (or its equivalent,
based on the applicable exchange rate, to the extent Debt Securities are issued
for one or more foreign currencies or currency units).
Specific terms of the particular Securities in respect of which this
Prospectus is being delivered will be set forth in one or more accompanying
Prospectus Supplements (each a "Prospectus Supplement"), together with the
terms of the offering of the Securities and the initial price and the net
proceeds to the Company from the sale thereof. The Prospectus Supplement will
set forth with regard to the particular Securities, without limitation, the
following: (i) in the case of Debt Securities, the specific designation,
aggregate principal amount, ranking as Senior Securities or Subordinated
Securities, authorized denomination, maturity, rate or method of calculation of
interest and dates for payment thereof, any exchangeability, conversion,
redemption, prepayment or sinking fund provisions, the currency or currencies
or currency unit or currency units in which principal, premium, if any, or
interest, if any, is payable, any modifications of or additions to the
covenants described in this Prospectus and any other specific terms thereof;
(ii) in the case of Preferred Stock, the designation, number of shares,
liquidation preference per share, initial public offering price, dividend rate
(or method of calculation thereof), dates on which dividends will be payable
and dates from which dividends will accrue, any redemption or sinking fund
provisions, any conversion or exchange rights, and any other relative rights;
and (iii) in the case of Warrants, the number and terms thereof, the
designation and the number of Securities issuable upon their exercise, the
exercise price, the terms of the offering and sale thereof and, where
applicable, the duration and detachability thereof.
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+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. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
<PAGE>
The Company's obligations under the Debt Securities will not be guaranteed
by any of its subsidiaries. The Securities may be sold for U.S. dollars, or
any foreign currency or currencies or currency units, and the principal of,
any premium on, and any interest on, the Debt Securities may be payable in
U.S. dollars, or any foreign currency or currencies or currency units. The
amounts payable by the Company in respect of Debt Securities may be calculated
by reference to the value, rate or price of one or more specified commodities,
currencies or indices to the extent set forth in the Prospectus Supplement.
The Prospectus Supplement will also contain information, where applicable,
about certain United States federal income tax considerations relating to the
Securities covered by the Prospectus Supplement.
The outstanding Common Stock is listed on the New York Stock Exchange under
the symbol "NSI." The applicable Prospectus Supplement will contain
information about any listing of the other Securities on a securities
exchange.
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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.
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The Company may sell the Securities directly, through agents designated from
time to time or through underwriters or dealers. If any agents of the Company
or any underwriters or dealers are involved in the sale of the Securities, the
names of such agents, underwriters or dealers, any applicable commissions and
discounts, and the net proceeds to the Company will be set forth in the
applicable Prospectus Supplement. See "Plan of Distribution" for possible
indemnification arrangements for agents, underwriters and dealers.
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALES OF SECURITIES UNLESS
ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
The date of this Prospectus is , 1998
2
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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 OR ANY PROSPECTUS SUPPLEMENT IN
CONNECTION WITH THE OFFER CONTAINED IN THIS PROSPECTUS OR ANY PROSPECTUS
SUPPLEMENT, AND, IF GIVEN OR MADE, ANY SUCH INFORMATION OR REPRESENTATION MUST
NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED. THIS PROSPECTUS OR ANY
PROSPECTUS SUPPLEMENT DOES NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION
OF AN OFFER TO BUY ANY SECURITIES BY ANYONE IN ANY JURISDICTION IN WHICH SUCH
OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH
OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANY PERSON TO WHOM IT IS
UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS
PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER SHALL,
UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE
IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THEREOF OR THAT THE
INFORMATION CONTAINED HEREIN OR THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT
TO ITS DATE.
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AVAILABLE INFORMATION
National Service Industries, Inc. is subject to the informational
requirements of the Securities Exchange Act of 1934 (the "Exchange Act"), and
in accordance therewith files reports, proxy statements and other information
with the Securities and Exchange Commission (the "Commission"). Reports, proxy
statements and other information filed by the Company may be inspected and
copied at the public reference facilities maintained by the Commission at Room
1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and at
certain of the Commission's Regional Offices located at Seven World Trade
Center, 13th Floor, New York, New York 10048 and Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661. The Commission maintains
a Web site that contains reports, proxy and information statements and other
information regarding registrants that file electronically with the
Commission. The address of the Commission's Web site is http://www.sec.gov.
Copies of such materials can be obtained by mail from the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Judiciary Plaza,
Washington, D.C. 20549, at prescribed rates. In addition, the Company's Common
Stock is listed on the New York Stock Exchange. The Company's reports, proxy
statements and other information filed under the Exchange Act may also be
inspected and copied at the offices of the New York Stock Exchange, 20 Broad
Street, New York, New York 10005.
The Company has filed with the Commission a registration statement on Form
S-3 (herein, together with all amendments and exhibits, referred to as the
"Registration Statement") under the Securities Act of 1933 (the "Securities
Act"). This Prospectus does not contain all of the information set forth in
the Registration Statement, certain parts of which are omitted in accordance
with the rules and regulations of the Commission. For further information,
reference is hereby made to the Registration Statement and to the exhibits and
schedules filed therewith. All of these documents may be inspected without
charge at the Commission's principal office in Washington, D.C., and copies
thereof may be obtained from the Commission at the prescribed rates or may be
examined without charge at the public reference facilities of the Commission.
3
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission (File No.
1-3208) pursuant to the Exchange Act are incorporated herein by reference: the
Company's Annual Report on Form 10-K for the year ended August 31, 1997; its
Quarterly Reports on Form 10-Q for the quarters ended November 30, 1997,
February 28, 1998 and May 31, 1998; and the description of capital stock
(including Common Stock) of the Company that is contained in the registration
statement filed under the Exchange Act under File No. 1-3208, including all
amendments or reports filed for the purpose of updating such description.
All other documents filed by the Company pursuant to Section 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 of the Securities shall be deemed to
be incorporated by reference in this Prospectus and to be a part hereof from
the date of filing of such documents. Any statement contained in a document
all or a portion of which is 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 statement so
modified shall not be deemed to constitute a part of this Prospectus except as
so modified, and any statement so superseded shall not be deemed to constitute
part of this Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom a copy of this Prospectus is delivered, upon the
written or oral request of any such person, a copy of any or all documents
which are incorporated herein by reference, other than exhibits to such
documents (unless such exhibits are specifically incorporated by reference
into such documents). Requests should be directed to the Company at its
principal executive offices at 1420 Peachtree Street, N.E., Atlanta, Georgia
30309-3002, Attention: Corporate Secretary, telephone (404) 853-1000.
4
<PAGE>
THE COMPANY
National Service Industries, Inc. (the "Company") is a diversified service
and manufacturing company that, through its subsidiaries, operates in four
business segments--lighting equipment, textile rental, chemicals and
envelopes. Lithonia Lighting is a manufacturer of lighting fixtures, serving
the commercial, industrial, institutional and residential markets. The
Company's chemical segment serves both the institutional and industrial and
retail markets in North America and Western Europe with products including
cleaners, sanitizers, polishes, degreasers, pesticides, insecticides,
herbicides and water treatments. National Linen Service is a multi-service
textile rental supplier, serving the hospitality, healthcare, industrial,
commercial and institutional markets. Atlantic Envelope is a leading producer
of custom envelopes and office products, serving primarily the southeastern
United States. For the fiscal year ended August 31, 1997, the Company had
total revenues of $2.0 billion and net income of $107.3 million.
As used herein, the "Company" means National Service Industries, Inc. and
its subsidiaries unless the context requires otherwise. The address and
telephone number of the Company's principal executive offices are 1420
Peachtree Street, N.E., Atlanta, Georgia 30309-3002, (404) 853-1000.
USE OF PROCEEDS
Except as otherwise described in the accompanying Prospectus Supplement, the
Company intends to use the net proceeds from the sale of the Securities for
general corporate purposes, which may include working capital increases,
capital expenditures, acquisitions, repayment of outstanding indebtedness and
repurchases of Company Common Stock. Any specific allocations of the proceeds
to a particular purpose that have been made at the date of any Prospectus
Supplement will be described therein.
RATIO OF EARNINGS TO FIXED CHARGES
The Company's ratio of earnings to fixed charges was as follows for the
years and periods indicated:
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
FISCAL YEARS ENDED AUGUST 31, MAY 31,
----------------------------- -----------
<S> <C> <C> <C> <C> <C> <C>
1993 1994 1995 1996 1997 1997 1998
---- ----- ----- ----- ----- ----- -----
13.51 16.51 19.13 19.95 19.09 16.82 16.34
</TABLE>
For purposes of computing the ratio of earnings to fixed charges, earnings
consist of pretax income plus fixed charges (excluding interest capitalized
during the period). Fixed charges consist of interest expense, amortization of
financing costs and the portion of rent expense which is deemed to be
representative of the interest component of rent expense.
RISK FACTORS RELATING TO CURRENCIES
Debt Securities denominated or payable in foreign currencies may entail
significant risks. These risks include, without limitation, the possibility of
significant fluctuations in the foreign currency markets. These risks will
vary depending upon the currency or currencies involved and will be more fully
described in a Prospectus Supplement relating thereto.
HOLDING COMPANY STRUCTURE
The Company is a holding company and its assets consist primarily of
investments in its subsidiaries. The Company's rights and the rights of its
creditors, including holders of Debt Securities, to participate in the
5
<PAGE>
distribution of assets of any subsidiary upon the liquidation or
reorganization of the subsidiary will be subject to prior claims of the
creditors of the subsidiary, including trade creditors, except to the extent
that the Company may itself be a creditor with recognized claims against such
subsidiary (in which case the claims of the company would still be subject to
the prior claims of any secured creditor of such subsidiary and of any holder
of indebtedness of such subsidiary that is Senior to that held by the
Company). In addition, the Company's current Credit Agreement, dated July 23,
1996, among the Company, Wachovia Bank of Georgia, N.A., and other banks (the
"Credit Agreement") provides that certain subsidiaries of the Company may
borrow directly under the Credit Agreement up to $250.0 million and the
Company guarantees any borrowings of such subsidiaries under the Credit
Agreement. As of June 30, 1998, the Company's subsidiaries had approximately
$65 million of borrowings outstanding under the Credit Agreement, and these
subsidiaries may borrow additional amounts under the Credit Agreement from
time to time. The holder of Debt Securities may be deemed to be effectively
subordinated to such claims. See "--General," "--Provisions Applicable to Both
Senior and Subordinated Debt Securities" and "--Provisions Applicable Solely
to Senior Debt Securities."
DESCRIPTION OF THE DEBT SECURITIES
The following description of the Debt Securities sets forth certain general
terms and provisions of the Debt Securities to which any Prospectus Supplement
may relate. The particular terms of the Debt Securities and the extent to
which such general provisions may apply will be described in a Prospectus
Supplement relating to such Debt Securities.
The Debt Securities will be general unsecured obligations of the Company and
will constitute either senior debt securities or subordinated debt securities.
In the case of Debt Securities that will be senior debt securities ("Senior
Debt Securities"), the Debt Securities will be issued under an Indenture (the
"Senior Indenture") between the Company and SunTrust Bank, Atlanta, as trustee
under the Senior Indenture. In the case of Debt Securities that will be
subordinated debt securities ("Subordinated Debt Securities"), the Debt
Securities will be issued under an Indenture (the "Subordinated Indenture") to
be entered into between the Company and SunTrust Bank, Atlanta, as trustee
under the Subordinated Indenture. The Senior Indenture and the Subordinated
Indenture are sometimes hereinafter referred to individually as an "Indenture"
and collectively as the "Indentures." Copies of the form of the Senior
Indenture and the form of the Subordinated Indenture have been filed as
exhibits to the Registration Statement. SunTrust Bank, Atlanta, as trustee
under each of the Indentures (and any successor thereto under each Indenture),
is referred to herein as the "Trustee." The statements under this caption
relating to the Debt Securities and the Indentures are summaries only and do
not purport to be complete. Such summaries make use of terms defined in the
Indentures. Wherever such terms are used herein or particular provisions of an
Indenture are referred to, such terms or provisions, as the case may be, are
incorporated by reference as part of the statements made herein, and such
statements are qualified in their entirety by such reference. Certain defined
terms in the Indentures are capitalized herein. The italicized references
below apply to the article or section numbers in the Senior Indenture and
Subordinated Indenture, respectively, or to both Indentures if only one
reference is provided, unless otherwise indicated.
PROVISIONS APPLICABLE TO BOTH SENIOR AND SUBORDINATED DEBT SECURITIES
The Indentures do not limit the aggregate principal amount of Debt
Securities that can be issued thereunder and provide that Debt Securities may
be issued from time to time thereunder in one or more series, each in an
aggregate principal amount authorized by the Company prior to issuance. The
Debt Securities may be issued at various times with different maturity dates
and different principal repayment provisions, may bear interest at different
rates, may be payable in currencies other than United States dollars, in
composite currencies or in amounts determined by reference to the price, rate
or value of one or more specified commodities, currencies or indices, and may
otherwise vary, all as provided in the Indentures. The Company has from time
to time entered into, and will in the future enter into, credit or other
financing agreements to fund its operations, herein referred to collectively
as the "Credit Facilities." Such credit or other financing agreements may be
secured by the assets of the Company, secured by the assets of subsidiaries of
the Company or guaranteed by subsidiaries of the
6
<PAGE>
Company. To the extent that the Credit Facilities are so secured or
guaranteed, the lenders under such Credit Facilities may have priority over
the holders of the Debt Securities with respect to the assets of the Company
or its subsidiaries that secure such Credit Facilities and may have priority
over the holders of the Debt Securities.
GENERAL
Unless otherwise indicated in a Prospectus Supplement, the Debt Securities
will not benefit from any covenant or other provision that would afford
holders of such Debt Securities special protection in the event of a
restructuring or highly leveraged transaction involving the Company.
Reference is made to the applicable Prospectus Supplement for the following
terms of the particular series of Debt Securities offered hereby: (i) the
title and aggregate principal amount of the Debt Securities; (ii) whether such
Debt Securities will be issued in the form of one or more global securities;
(iii) the date or dates on which the Debt Securities will mature; (iv) the
rate or rates (which may be fixed or variable) per annum, if any, at which the
Debt Securities will bear interest or the method of determining such rate or
rates, and the date or dates from which such interest, if any, will accrue and
the date or dates at which such interest, if any, will be payable; (v) the
place or places where the principal of premium, if any, and any interest on
the Debt Securities shall be payable; (vi) the terms for redemption or early
payment, if any, including any mandatory or optional sinking fund or analogous
provision; (vii) if other than denominations of $1,000 or any integral
multiple thereof, the denominations in which Debt Securities of the series
shall be issuable; (viii) the currency, currencies (including composite
currencies), or current unit or units in which such Debt Securities will be
denominated and in which the principal of, and premium interest, if any, on
such Debt Securities will be payable; (ix) whether, and the terms and
conditions on which, the Company or a holder may elect that, or the other
circumstances under which, payment of principal of, or premium or interest, if
any on such Debt Securities is to be made in a currency or currencies or
currency unit or units other than that in which such Debt Securities are
denominated; (x) any index or formula to be used to determine the amount of
payments of principal of (and premium, if any) and interest on such Debt
Securities and any commodities, currencies, currency units or indices, or
value, rate or price, relevant to such determination; (xi) if other than the
principal amount thereof, the portion of the principal amount of Debt
Securities of the series that shall be payable upon declaration of
acceleration of the maturity thereof or provable in bankruptcy; (xii) any
additional means of satisfaction and discharge; (xiii) any deletions or
modifications of or additions to the Events of Default or covenant of the
Company; (xiv) the terms for conversion or exchange, if any, of the Debt
Securities; (xv) the terms, if any, upon which such Debt Securities may be
convertible into Common Stock, Preferred Stock, other Debt Securities or other
securities or property of the Company and the terms and conditions upon which
such conversion may be effected, including the initial conversion price or
rate and any other provision in addition to or in lieu of those described
herein; (xvi) information with respect to book-entry procedures; and (xvii)
any other specific terms of the Debt Securities. (Section 301)
The Company currently conducts substantially all of its operations through
subsidiaries, and the holders of Debt Securities will generally have a junior
position to any claims of creditors and any preferred stockholders of the
Company's subsidiaries. Claims of creditors of such subsidiaries, including
banks, trade creditors, secured creditors, taxing authorities and
beneficiaries of subsidiary guarantees, and claims of holders of any preferred
stock issued by such subsidiaries will generally have priority as to the
assets of such subsidiaries over the claims and equity interests of the
Company and, thereby, indirectly, the holders of indebtedness of the Company,
including the Debt Securities. In addition, the Credit Agreement provides that
certain subsidiaries of the Company may borrow directly under the Credit
Agreement up to $250.0 million and the Company guarantees any borrowings of
such subsidiaries under the Credit Agreement. See "Holding Company Structure."
Debt Securities may be sold at a discount (which may be substantial) below
their stated principal amount bearing no interest or interest at a rate which
at the time of issuance is below market rates. Any material United States
federal income tax consequences and other special considerations applicable
thereto will be described in the Prospectus Supplement relating to any such
Debt Securities.
7
<PAGE>
If any of the Debt Securities are sold for any foreign currency or currency
unit or if the principal of, or premium or interest, if any, on any of the
Debt Securities is payable in any foreign currency or currency unit, the
restrictions, elections, tax consequences, specific terms and other
information with respect to such Debt Securities and such foreign currency or
currency unit will be set forth in the Prospectus Supplement relating thereto.
Debt Securities denominated or payable in foreign currencies may entail
significant risks. These risks include, without limitation, the possibility of
significant fluctuations in the foreign currency markets. These risks will
vary depending upon the currency or currencies involved. If applicable, these
risks will be more fully described in the Prospectus Supplement relating
thereto.
COVENANTS
The Indentures require the Company to covenant, among other things, with
respect to each series of Debt Securities: (i) to duly and punctually pay the
principal of (and premium, if any) and interest, if any, on such series of
Debt Securities; (ii) to maintain an office or agency in each Place of Payment
where Debt Securities may be presented or surrendered for payment, transferred
or exchanged and where notices to the Company may be served; (iii) if the
Company shall act as its own Paying Agent for any series of Debt Securities,
to segregate and hold in trust for the benefit of the Persons entitled thereto
a sum sufficient to pay the principal (and premium, if any) or interest, if
any, so becoming due; (iv) to preserve its corporate existence; (v) to
maintain its properties; (vi) to pay taxes and other claims, in each case, as
required by the Indentures; and (vii) to deliver to the Trustee, within 120
days after the end of each fiscal year, a written statement to the effect that
the Company has fulfilled all its obligations under the Indentures throughout
such year. (Article Ten)
EVENTS OF DEFAULT
Unless otherwise provided with respect to any series of Debt Securities, the
following are Events of Default under each Indenture with respect to the Debt
Securities of such series issued under the Indenture: (a) failure to pay any
interest on any Debt Security of such series when due, continued for 30 days;
(b) failure to pay principal of (or premium, if any, on) any Debt Security of
such series when due; (c) failure to deposit any mandatory sinking fund
payment, when due, in respect of the Debt Securities of such series; (d)
failure to perform any other covenant of the Company in the applicable
Indenture (other than a covenant included in the applicable Indenture for the
benefit of a series of Debt Securities other than such series), continued for
60 days after written notice as provided in the applicable Indenture; (e)
certain events of bankruptcy, insolvency or reorganization; and (f) any other
Event of Default as may be established with respect to Debt Securities of such
series (including, without limitation, any Event of Default arising out of a
default which results in the acceleration of certain Indebtedness or a default
in the payment of any amounts due on certain Indebtedness). (Sections 301 and
501) If an Event of Default with respect to any outstanding series of Debt
Securities occurs and is continuing, either the Trustee or the holders of at
least 25% in principal amount of the outstanding Debt Securities of such
series (subject to the next following sentence, in the case of an Event of
Default described in clause (a), (b), (c) or (d) above) or at least 25% in
principal amount of all outstanding Debt Securities under the Indenture
(subject to the next following sentence, in the case of other Events of
Default) may declare the principal amount of all the Debt Securities of the
applicable series (or of all outstanding Debt Securities under the applicable
Indenture, as the case may be) to be due and payable immediately. If an Event
of Default described in clause (e) or (f) shall occur, the principal amount of
the outstanding Debt Securities of all series ipso facto shall become and be
immediately due and payable without any declaration or other act on the part
of the Trustee or any holder. At any time after a declaration of acceleration
has been made, but before a judgment has been obtained, the holders of a
majority in principal amount of the outstanding Debt Securities of such series
(or all outstanding Debt Securities under the applicable Indenture, as the
case may be) may, under certain circumstances, rescind and annul such
acceleration. (Section 502) Depending on the terms of other Indebtedness of
the Company outstanding from time to time, an Event of Default under an
Indenture may give rise to cross defaults on such other Indebtedness of the
Company.
Each Indenture provides that the Trustee will, within 90 days after the
occurrence of a default in respect of any series of Debt Securities, give to
the holders of the Debt Securities of such series notice of all uncured and
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unwaived defaults known to it; provided, however, that, except in the case of
a default in the payment of the principal of (or premium, if any) or any
interest on, or any sinking fund installment with respect to, any Debt
Securities of such series, the Trustee will be protected in withholding such
notice if it in good faith determines that the withholding of such notice is
in the interest of the holders of the Debt Securities of such series; and
provided, further, that such notice shall not be given until at least 30 days
after the occurrence of a default in the performance, or breach, of any
covenant or warranty of the Company under such Indenture other than for the
payment of the principal of (or premium, if any) or any interest on, or any
sinking fund installment with respect to, any Debt Securities of such series.
For the purpose of this provision, "default" with respect to Debt Securities
of any series means any event which is, or after notice or lapse of time, or
both, would become, an Event of Default with respect to the Debt Securities of
such series. (Section 602)
The holders of a majority in principal amount of the outstanding Debt
Securities of any series (or, in certain cases, all outstanding Debt
Securities under the applicable Indenture) have the right, subject to certain
limitations, to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on the Trustee with respect to the Debt Securities of such series
(or of all outstanding Debt Securities under the applicable Indenture).
(Section 512) Each Indenture provides that in case an Event of Default shall
occur and be continuing with respect to the Debt Securities of any series, the
Trustee shall exercise such of its rights and powers under the applicable
Indenture and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
his own affairs. (Section 701; Section 601) Subject to such provisions, the
Trustee will be under no obligation to exercise any of its rights or powers
under either Indenture at the request of any of the holders of the Debt
Securities unless they shall have offered to the Trustee reasonable security
or indemnity against the costs, expenses and liabilities that might be
incurred by it in compliance with such request. (Section 603) The holders of a
majority in principal amount of the outstanding Debt Securities of any series
(or, in certain cases, all outstanding Debt Securities under the applicable
Indenture) may on behalf of the holders of all Debt Securities of such series
(or of all outstanding Debt Securities under the applicable Indenture) waive
any past default under the Indenture, except a default in the payment of the
principal of (or premium, if any) or interest on any Debt Security 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
affected. (Section 513) The holders of a majority in principal amount of the
outstanding Debt Securities affected thereby may on behalf of the holders of
all such Debt Securities waive compliance by the Company with certain
restrictive provisions of the Indenture. (Section 1008 of the Subordinated
Indenture; Section 1010 of the Senior Indenture)
The Company is required to furnish to the Trustee annually a statement as to
the performance by the Company of certain of its obligations under each
Indenture and as to any default in such performance. (Section 1007 of the
Subordinated Indenture; Section 1009 of the Senior Indenture)
MODIFICATION
Modifications and amendments of each Indenture may be made by the Company
and the Trustee with the consent of the holders of a majority in principal
amount of the outstanding Debt Securities under the Indenture 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 date of the principal of, or any
installment of interest on, any Debt Security, (b) reduce the percentage in
principal amount of outstanding Debt Securities the consent of whose holders
is required for modification or amendment of the Indentures or for waiver of
compliance with certain provisions of the Indentures or for waiver of certain
defaults, (c) reduce the principal amount of, or the premium (if any) or
interest on, any Debt Security, (d) change the Place of Payment or currency,
currencies, or currency unit or units of payment of principal of, or premium
(if any) or interest on, any Debt Security or (e) impair the right to
institute suit for the enforcement of any payment on or with respect to any
Debt Security. (Section 902)
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Each Indenture provides that the Company and the Trustee may, without the
consent of any holders of Debt Securities, enter into supplemental indentures
for the purposes, among other things, of evidencing the succession of another
Person to the Company and the assumption by any such successor of the
covenants of the Company, adding to the Company's covenants, securing the Debt
Securities, adding additional Events of Default, establishing the form or
terms of Debt Securities or curing ambiguities or inconsistencies in the
applicable Indenture, provided such action to cure ambiguities or
inconsistencies shall not adversely affect the interests of the holders of the
Debt Securities in any material respect. (Section 901)
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company, without the consent of any holders of outstanding Debt
Securities, may consolidate with or merge into, or convey, transfer or lease
its assets substantially as an entirety to, any Person, provided that the
Person formed by such consolidation or into which the Company is merged or
which acquires or leases the assets and properties of the Company
substantially as an entirety is a corporation, partnership or trust organized
under the laws of any United States jurisdiction and assumes by supplemental
indenture the Company's obligations on the Debt Securities and under the
Indenture, that after giving effect to the transaction, no Event of Default,
and no event which, after notice or lapse of time or both, would become an
Event of Default, shall have occurred and be continuing, and that certain
other conditions are met. Upon compliance with these provisions by a successor
Person, the Company will (except in the case of a lease) be relieved of its
obligations under the Indenture and the Debt Securities. (Article Eight)
DISCHARGE AND DEFEASANCE
Unless otherwise provided with respect to any series of Debt Securities, the
Company may terminate its obligations under each Indenture with respect to
Debt Securities of any series, other than its obligation to pay the principal
of (and premium, if any) and interest on such Debt Securities and certain
other obligations, if it (i) irrevocably deposits or causes to be irrevocably
deposited with the Trustee as trust funds money or U.S. Government Obligations
maturing as to principal and interest sufficient to pay the principal of, any
interest on, and any mandatory sinking funds in respect of, all outstanding
Debt Securities of such series on the stated maturity of such payments or on
any redemption date, (ii) has delivered to the Trustee an opinion of counsel
to the effect that the holders of Debt Securities of such series will not
recognize income, gain or loss for United States federal income tax purposes
as a result of such discharge and will be subject to United States federal
income tax on the same amount and in the same manner and at the same time as
would have been the case if such discharge had not occurred, and (iii)
complies with any additional conditions specified to be applicable with
respect to the covenant defeasance of Debt Securities of such series, and no
default or Event of Default with respect to the Debt Securities of such series
shall have occurred and be continuing on the date of such deposit or, insofar
as they relate to certain events of bankruptcy or insolvency, at any time in
the period ending on the 91st day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period). (Section 401)
The terms of any series of Debt Securities may also provide for legal
defeasance pursuant to each Indenture. In such case, if the Company (i)
irrevocably deposits or causes to be irrevocably deposited money or U.S.
Government Obligations as described above and complies with the other
provisions described above (except that the opinion referred to in clause (ii)
above must be based on a ruling by the Internal Revenue Service or other
change under applicable United States federal income tax law), (ii) makes a
request to the Trustee to be discharged from its obligations on the Debt
Securities of such series and (iii) complies with any additional conditions
specified to be applicable with respect to legal defeasance of Debt Securities
of such series, then the Company shall be deemed to have paid and discharged
the entire indebtedness on all the outstanding Debt Securities of such series,
and the obligations of the Company under the applicable Indenture and the Debt
Securities of such series to pay the principal of (and premium, if any) and
interest on the Debt Securities of such series shall cease, terminate and be
completely discharged and the holders thereof shall thereafter be entitled
only to payment out of the money or U.S. Government Obligations deposited with
the Trustee as aforesaid,
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unless the Company's obligations are revived and reinstated because the
Trustee is unable to apply such trust fund by reason of any legal proceeding,
order or judgment. (Sections 403 and 404)
CONVERSION RIGHTS
The terms on which Debt Securities of any series are convertible into or
exchangeable for Common Stock or other securities or property of the Company
will be set forth in the Prospectus Supplement relating thereto. Such terms
shall include provisions as to whether conversion or exchange is mandatory, at
the option of the holder or at the option of the Company, and may include
provisions pursuant to which the number of shares of Common Stock or other
securities of the Company to be received by the holders of Debt Securities
would be calculated according to the market price of Common Stock or other
securities of the Company as of a time stated in the Prospectus Supplement.
The conversion price of any Debt Securities of any series that is convertible
into Common Stock or other securities of the Company may be adjusted for any
stock dividends, stock splits, reclassification, combinations or similar
transactions, as set forth in the applicable Prospectus Supplement. (Article
Fourteen)
EXCHANGE, REGISTRATION AND TRANSFER
Debt Securities of any series will be exchangeable for other Debt Securities
of the same series and of a like aggregate principal amount and tenor of
different authorized denominations. Debt Securities may be presented for
exchange and for registration of transfer (with the form of transfer endorsed
thereon duly executed), at the office of the Security Registrar or at the
office of any transfer agent designated by the Company for such purpose with
respect to any series of Debt Securities and referred to in an applicable
Prospectus Supplement, without a service charge and upon payment of any taxes
and other governmental charges as described in the applicable Indenture. Such
transfer or exchange will be effected upon the Security Registrar or such
transfer agent, as the case may be, being satisfied with the document of title
and identity of the Person making the request. The Company has appointed the
Trustee as Security Registrar. (Section 305) If a Prospectus Supplement refers
to any transfer agents (in addition to the Security Registrar) initially
designated by the Company with respect to any series of Debt Securities, the
Company may at any time rescind the designation of any such transfer agent or
approve a change in the location through which 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 Debt Securities.
(Section 1002)
In the event of any redemption in part, the Company shall not be required to
(i) issue, register the transfer of or exchange Debt Securities of any series
during a period beginning at the opening of business 15 days prior to the
mailing of notice of redemption of Debt Securities of that series for
redemption and ending on the close of business on the day of mailing of the
relevant notice of redemption or (ii) register the transfer of or exchange any
Registered Debt Security, or portion thereof, called for redemption, except
the unredeemed portion of any Registered Debt Security being redeemed in part.
(Section 305)
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of principal of and any premium and interest on Registered Debt Securities
will be made in the designated currency or currency unit at the office of such
Paying Agent or Paying Agents as the Company may designate from time to time,
except that at the option of the Company payment of any interest may be made
by check mailed to the address of the Person entitled thereto as such address
shall appear in the Security Register. Unless otherwise indicated in an
applicable Prospectus Supplement, payment of any installment of interest on
Registered Debt Securities will be made to the Person in whose name such
Registered Debt Security is registered at the close of business on the Regular
Record Date for such interest. (Section 307)
Unless otherwise indicated in an applicable Prospectus Supplement, the
Corporate Trust Office of the Trustee in the Borough of Manhattan, The City of
New York will be designated as a Paying Agent for the
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Company for payments with respect to Debt Securities which are issuable solely
as Registered Debt Securities. Any other Paying Agents in the United States
initially designated by the Company for the Debt Securities will be named in
an applicable Prospectus Supplement. The Company may at any time designate
additional Paying Agents or rescind the designation of any Paying Agent or
approve a change in the office through which any Paying Agent acts, except
that the Company will be required to maintain a Paying Agent in each Place of
Payment for such series. (Section 1002)
All moneys 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 at the end of three years after such principal, premium or interest
shall have become due and payable will (subject to applicable escheat laws) be
repaid to the Company, and the holder of such Debt Security will thereafter as
an unsecured general creditor look only to the Company for payment thereof.
(Section 1003)
GLOBAL SECURITIES
The Debt Securities of a series may be issued in the form of one or more
Global Securities that will be deposited with a 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
denominations 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 definitive registered form, a Global Security may not
be registered for transfer or exchange except as a whole by the Depositary for
such Global Security to a nominee for such Depositary and except in the
circumstances described in the Applicable Prospectus Supplement. (Sections
204)
The Company expects that the following provisions will apply to depositary
arrangements with respect to any portion of a series of Debt Securities to be
represented by a Global Security. Any additional specific terms of the
depositary arrangement will be described in the applicable Prospectus
Supplement.
Upon the issuance of any Global Security, and the deposit of such Global
Security with or on behalf of the Depositary for such Global Security, the
Depositary will credit, on its book-entry registration and transfer system,
the respective principal amounts of the Debt Securities represented by such
Global Security to the accounts of institutions ("Participants") that have
accounts with the Depositary or its nominee. The accounts to be credited will
be designated by the underwriters or agents engaging in the distribution of
such Debt Securities or by the Company, if such Debt Securities are offered
and sold directly by the Company. Ownership of beneficial interests in a
Global Security will be limited to Participants or persons that may hold
interest through Participants. Ownership of beneficial interests by
Participants in such Global Security will be shown on, and the transfer of
such beneficial interests will be effected only through, records maintained by
the Depositary for such Global Security or by its nominee. Ownership of
beneficial interests in such Global Security by persons that hold through
Participants will be shown on, and the transfer of such beneficial interests
within such Participants will be effected only through, records maintained by
such Participants. The laws of some jurisdictions may 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 Depositary for a Global Security or its nominee, is the
registered owner of such Global Security, such Depositary or such nominee, as
the case may be, will be considered the sole owner or holder of the Debt
Securities represented by such Global Security for all purposes under the
Indentures. Unless otherwise specified in the applicable Prospectus Supplement
and except as specified below, 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 Indentures. Accordingly, each person owning a
beneficial interest in such Global Security must rely on the procedures of the
Depositary and, if such person is not a Participant, on the procedures of the
Participant through which such person owns their interest, to exercise any
rights of a holder under the Indentures.
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The Depositary may grant proxies and otherwise authorize Participants to
give or take any request, demand, authorization, direction, notice, consent,
waiver or other action which a holder is entitled to give or take under the
Indentures. The Company understands that, under existing industry practices,
if the Company requests any action of holders or any 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 the Indentures, the 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.
Unless otherwise specified in the applicable Prospectus Supplement, payments
with respect to principal, premium, if any, and interest on Debt Securities
represented by a Global Security registered in the name of a Depositary or its
nominee will be made by the Company to such Depositary or its nominee, as the
case may be, as the registered owner of such Global Security.
The Company expects that the Depositary for any Debt Securities represented
by a Global Security, upon receipt of any payment of principal, premium or
interest, will credit Participants' accounts with payments in amounts
proportionate to their respective beneficial interests in the principal amount
of such Global Security as shown on the records of such Depositary. The
Company also expects that payments by Participants to owners of beneficial
interests in such Global Security held through such Participants will be
governed by standing instructions and customary practices, as is now the case
with the securities held for the accounts of customers registered in "street
names," and will be the responsibility of such Participants. None of the
Company, the Trustee or any agent of the Company or the Trustee shall have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial interests in a Global Security, or for
maintaining, supervising or reviewing any records relating to such beneficial
interests. (Section 308)
Unless otherwise specified in the applicable Prospectus Supplement, a Global
Security of any series will be exchangeable for certificated Debt Securities
of the same series only if (i) the Depositary for such Global Securities
notifies the Company that it is unwilling or unable to continue as Depositary
or such Depositary ceases to be a clearing agency registered under the
Exchange Act (if so required by applicable law or regulation) and, in either
case, a successor Depositary is not appointed by the Company within 90 days
after the Company receives such notice or becomes aware of such ineligibility,
(ii) the Company in its sole discretion determines that such Global Securities
shall be exchangeable for certificated Debt Securities or (iii) there shall
have occurred and be continuing an Event of Default under the Indenture with
respect to the Debt Securities of such series. Upon any such exchange, owners
of beneficial interests in such Global Security or Securities will be entitled
to physical delivery of individual Debt Securities in certificated form of
like tenor and terms equal in principal amount to such beneficial interests,
and to have such Debt Securities in certificated form registered in the names
of the beneficial owners, which names are expected to be provided by such
Depositary's relevant Participants (as identified by such Depositary) to the
Trustee.
The following is based on information furnished to the Company:
In the event that the Depositary Trust Company ("DTC") acts as Depositary
for the Global Securities of any series, such Global Securities will be issued
as fully registered securities registered in the name of Cede & Co. (DTC's
partnership nominee). One fully registered Global Security will be issued with
respect to each $200 million (or such other amount as shall be permitted by
DTC from time to time) of principal amount of the Debt Securities of a series,
and an additional certificate will be issued with respect to any remaining
principal amount of such series.
DTC is a limited purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law,
a member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act. DTC
holds securities that its Participants deposit with DTC. DTC also facilitates
the settlement among Participants of securities transactions,
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such as transfers and pledges, in deposited securities through electronic
computerized book-entry changes in Participants' accounts, thereby eliminating
the need for physical movement of securities certificates. Direct Participants
include securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations ("Direct Participants"). DTC is
owned by a number of its Direct Participants and by the New York Stock
Exchange, Inc., the American Stock Exchange, Inc. and the National Association
of Securities Dealers, Inc. Access to the DTC system is also available to
others, such as securities brokers and dealers and banks and trust companies
that clear through or maintain a custodial relationship with a Direct
Participant, either directly or indirectly ("Indirect Participants"). The
rules applicable to DTC and its Participants are on file with the Commission.
To facilitate subsequent transfers, the Debt Securities are registered in
the name of DTC's nominee, Cede & Co. The deposit of the Debt Securities with
DTC and their registration in the name of Cede & Co. will effect no change in
beneficial ownership. DTC has no knowledge of the actual beneficial owners of
the Debt Securities; DTC's records reflect only the identity of the Direct
Participants to whose accounts Debt Securities are credited, which may or may
not be the beneficial owners. The Participants remain responsible for keeping
account of their holdings on behalf of their customers.
Delivery of notices and other communications by DTC to Direct Participants,
by Direct Participants to Indirect Participants, and by Direct Participants
and Indirect Participants to beneficial owners of Debt Securities is governed
by arrangements among them, subject to any statutory or regulatory
requirements as may be in effect from time to time.
Neither DTC nor Cede & Co. consents or votes with respect to the Debt
Securities. Under its usual procedures, DTC mails a proxy (an "Omnibus Proxy")
to the issuer as soon as possible after the record date. The Omnibus Proxy
assigns Cede & Co.'s consenting or voting rights to those Direct Participants
to whose accounts the Debt Securities are credited on the record date
(identified on a list attached to the Omnibus Proxy).
If applicable, redemption notices shall be sent to Cede & Co. If less than
all of the Debt Securities of a series represented by Global Securities are
being redeemed, DTC's practice is to determine by lot the amount of the
interest of each Direct Participant in such issue to be redeemed.
To the extent that any Debt Securities provide for repayment or repurchase
at the option of the holders thereof, a beneficial owner shall give notice of
any option to elect to have its interest in the Global Security repaid by the
Company, through its Participant, to the Trustee, and shall effect delivery of
such interest in a Global Security by causing the Direct Participant to
transfer the Direct Participant's interest in the Global Security or
Securities representing such interest, on DTC's records, to the Trustee. The
requirement for physical delivery of Debt Securities in connection with a
demand for repayment or repurchase will be deemed satisfied when the ownership
rights in the Global Security or Securities representing such Debt Securities
are transferred by Direct Participants on DTC's records.
DTC may discontinue providing its services as securities depositary with
respect to the Debt Securities at any time. Under such circumstances, in the
event that a successor securities depositary is not appointed, Debt Security
certificates are required to be printed and delivered as described above.
The Company may decide to discontinue use of the system of book-entry
transfers through DTC (or a successor securities depositary). In that event,
Debt Security certificates will be printed and delivered as described above.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that the Company believes to be reliable, but
the Company takes no responsibility for the accuracy thereof.
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MEETINGS
The Indentures contain provisions for convening meetings of the holders of
Debt Securities of a series. A meeting may be called at any time by the
Trustee, and also, upon request, by the Company or the holders of at least 25%
in principal amount of the Outstanding Debt Securities of such series, in any
such case upon notice given as described under "--Notices" below. Except for
any consent that must be given by the holder of each Outstanding Debt Security
affected thereby, as described under "--Modification" above, any resolution
presented at a meeting or adjourned meeting at which a quorum is present may
be adopted by the affirmative vote of the holders of a majority in aggregate
principal amount of the Outstanding Debt Securities of that series; provided,
however, that except for any consent that must be given by the holder of each
Outstanding Debt Security affected thereby, as described under "--
Modification" above, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action that may be
made, given or taken by the holders of a specified percentage, which is less
than a majority in principal amount of the Outstanding Debt Securities of a
series may be adopted at a meeting or adjourned meeting duly reconvened at
which a quorum is present by the affirmative vote of the holders of such
specified percentage in principal amount of the Outstanding Debt Securities of
that series. Subject to the proviso set forth above, any resolution passed or
action taken at any meeting of holders of Debt Securities of any series duly
held in accordance with each Indenture will be binding on all holders of Debt
Securities of that series and any related coupons. The quorum at any meeting
called to adopt a resolution, and at any reconvened meeting, will be Persons
holding or representing a majority in principal amount of the Outstanding Debt
Securities of a series. (Article Thirteen)
NOTICES
Notices to holders of Debt Securities will be given by mail to the addresses
of such holders as they appear in the Security Register. (Section 107)
THE TRUSTEE
The Indentures provide that the Trustee shall authenticate and deliver Debt
Securities of a particular series in accordance with a Company Order. Each
Indenture contains certain limitations on the right of the Trustee, should it
become a creditor of the Company, to obtain payment of claims in certain cases
and to realize certain property received with respect to any such claims, as
security or otherwise. (Section 613) The Trustee is one of the lenders under
certain of the Company's Credit Facilities. The Trustee is permitted to engage
in other transactions, except that, if it acquires any conflicting interest
and there is a default under the Debt Securities, it must eliminate such
conflict or resign. (Section 608)
GOVERNING LAW
The Indentures are, and the Debt Securities will be, governed by and
construed in accordance with the laws of the State of New York, but without
giving effect to principles of conflicts of law. (Section 113)
PROVISIONS APPLICABLE SOLELY TO SENIOR DEBT SECURITIES
Senior Debt Securities will be issued under the Senior Indenture and will
rank pari passu in right of payment with the Company's obligations under its
Credit Facilities and all other unsecured and unsubordinated debt of the
Company, and will be senior in right of payment to all existing and future
debt of the Company that is, by its terms, expressly subordinated to the
Senior Debt Securities. The Senior Debt Securities issued under this
Prospectus will not be guaranteed by any subsidiary of the Company and will
not rank pari passu with any debt of such subsidiary, but will be senior in
right of payment to all existing and future debt of such subsidiary that is,
by its terms, expressly subordinated to the Senior Debt Securities.
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COVENANT PROVIDING FOR LIMITATION ON LIENS
Nothing in the Senior Indenture or the Senior Debt Securities will in any
way restrict or prevent the Company or any Restricted Subsidiary from issuing,
assuming, guaranteeing or otherwise incurring any Indebtedness, provided,
however, the Senior Indenture will provide that the Company will not, and will
not permit any Restricted Subsidiary to, issue, assume or guarantee any
Indebtedness for borrowed money secured by any Lien on any property or asset
now owned or hereafter acquired by the Company or such Restricted Subsidiary
without making effective provision whereby any and all Senior Debt Securities
then or thereafter outstanding will be secured by a Lien equally and ratably
with any and all other obligations thereby secured for so long as any such
obligations shall be so secured.
Notwithstanding the foregoing, the Company or any Restricted Subsidiary may,
without so securing the Senior Debt Securities, issue, assume or guarantee
Indebtedness secured by the following Liens:
(a) Liens existing on the date on which the Senior Debt Securities are
originally issued or provided for under the terms of agreements existing on
such date;
(b) Liens on property securing (i) all or any portion of the cost of
acquiring, constructing, altering, improving or repairing any property or
assets, real or personal, or improvements used or to be used in connection
with such property of the Company or Restricted Subsidiaries or (ii)
Indebtedness incurred by the Company or any Restricted Subsidiary to
provide funds for the activities set forth in clause (i) above;
(c) Liens securing Indebtedness owed by a Restricted Subsidiary to the
Company or to any other Restricted Subsidiary;
(d) Liens on the property of any Person existing at the time such Person
becomes a Subsidiary of the Company and not incurred as a result of (or in
connection with or in anticipation of) such Person becoming a Subsidiary of
the Company, provided that such Liens do not extend to or cover any
property or assets of the Company or any of its Subsidiaries other than the
property so acquired;
(e) Liens on any property securing (i) Indebtedness incurred in
connection with the construction, installation or financing of pollution
control or abatement facilities or other forms of industrial revenue bond
financing or (ii) Indebtedness issued or guaranteed by the United States or
any State thereof or any department, agency or instrumentality of either;
(f) any Lien extending, renewing or replacing (or successive extensions,
renewals or replacements of) any Lien of any type permitted under clauses
(a) through (e) above, provided that such Lien extends to or covers only
the property that is subject to the Lien being extended, renewed or
replaced;
(g) certain Liens arising, but only so long as continuing, in the
ordinary course of business of the Company and the Restricted Subsidiaries;
or
(h) Liens (exclusive of any Lien of any type otherwise permitted under
clauses (a) through (g) above) securing Indebtedness of the Company or any
Restricted Subsidiary in an aggregate principal amount which, together with
the aggregate amount of Attributable Indebtedness deemed to be outstanding
in respect of all Sale/Leaseback Transactions entered into pursuant to
clause (a) of the covenant described under "Limitation on Sale/Leaseback
Transactions" below (exclusive of any such Sale/Leaseback Transactions
otherwise permitted under clauses (a) through (g) above), does not at the
time such Indebtedness is incurred exceed 15% of the Consolidated Net
Tangible Assets of the Company (as shown in the most recent audited
consolidated balance sheet of the Company and its Subsidiaries). (Section
1007 of the Senior Indenture)
COVENANT PROVIDING FOR LIMITATION ON SALE/LEASEBACK TRANSACTIONS
The Senior Indenture will provide that the Company will not, and will not
permit any Restricted Subsidiary to, enter into any Sale/Leaseback Transaction
with any Person (other than the Company or a Restricted Subsidiary) unless:
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(a) the Company or such Restricted Subsidiary would be entitled to incur
Indebtedness, in a principal amount equal to the Attributable Indebtedness
with respect to such Sale/Leaseback Transaction, secured by a Lien on the
property subject to such Sale/Leaseback Transaction pursuant to the
covenant described under "Limitation on Liens" above without equally and
ratably securing the Senior Debt Securities pursuant to such covenant;
(b) after the date on which the Senior Debt Securities are originally
issued and within a period commencing six months prior to the consummation
of such Sale/Leaseback Transaction and ending six months after the
consummation thereof, the Company or such Restricted Subsidiary shall have
expended for property used or to be used in the ordinary course of business
of the Company and the Restricted Subsidiaries an amount equal to all or a
portion of the net proceeds of such Sale/Leaseback Transaction and the
Company shall have elected to designate such amount as a credit against
such Sale/Leaseback Transaction (with any such amount not being so
designated to be applied as set forth in clause (c) below); or
(c) the Company, during the 12-month period after the effective date of
such Sale/Leaseback Transaction, shall have applied to the voluntary
defeasance or retirement of any Pari Passu Indebtedness an amount equal to
the greater of the net proceeds of the sale or transfer of the property
leased in such Sale/Leaseback Transaction and the fair value, as determined
by the Board of Directors of the Company, of such property at the time of
entering into such Sale/Leaseback Transaction (in either case adjusted to
reflect the remaining term of the lease and any amount expended by the
Company as set forth in clause (b) above), less an amount equal to the
principal amount of Debt Securities and Pari Passu Indebtedness voluntarily
defeased or retired by the Company within such 12-month period and not
designated as a credit against any other Sale/Leaseback Transaction entered
into by the Company or any Restricted Subsidiary during such period.
(Section 1106 of the Senior Indenture)
The term "Attributable Indebtedness," when used with respect to any
Sale/Leaseback Transaction, is defined in the Senior Indenture as at the time
of determination, the present value (discounted at a rate equivalent to the
Company's then current weighted average cost of funds for borrowed money as at
the time of determination, compounded on a semi-annual basis) of the total
obligations of the lessee for rental payments (other than amounts required to
be paid or account of maintenance and repairs, reconstruction, insurance,
taxes, assessments, water rates, and similar charges are contingent rates
(such as those based on sales)) during the remaining term of the lease
included in such Sale/Leaseback Transaction (including any period for which
such lease has been extended).
The term "Capitalized Lease Obligation" of any Person is defined in the
Senior Indenture as any obligation of such Person to pay rent or other amounts
under a lease of property, real or personal, that is required to be
capitalized for financial reporting purposes in accordance with generally
accepted accounting principles; and the amount of such obligation shall be the
capitalized amount thereof determined in accordance with generally accepted
accounting principles.
The term "Consolidated Net Tangible Assets" of the Company is defined in the
Senior Indenture as the aggregate amount of assets (less applicable reserves
and other properly deductible items) after deducting therefrom (i) all current
liabilities, and (ii) all goodwill, trade names, trademarks, patents,
unamortized debt discount and expense and other like tangibles, all as set
forth on the most recent quarterly balance sheet of the Company and its
consolidated subsidiaries and computed in accordance with generally accepted
accounting principles.
The term "Funded Indebtedness" is defined in the Senior Indenture as all
Indebtedness (including Indebtedness incurred under any revolving credit,
letter of credit or working capital facility) that matures by its terms, or
that is renewable at the option of any obligor thereon to a date, more than
one year after the date on which such Indebtedness is originally incurred.
The term "Hedging Obligations" of any Person is defined in the Senior
Indenture as the obligations of such Person pursuant to any interest rate swap
agreement, foreign currency exchange agreement, interest rate
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collar agreement, option or future contract or other similar agreement or
arrangement relating to interest rates or foreign exchange rates.
The term "Indebtedness" of any Person at any date is defined in the Senior
Indenture as, without duplication, (i) all indebtedness of such Person for
borrowed money (whether or not the recourse of the lender is to the whole of
the assets of such Person or only to a portion thereof), (ii) all obligations
of such Person evidenced by bonds, debentures, notes or other similar
instruments, (iii) all obligations of such Person in respect of letters of
credit or other similar instruments (or reimbursement obligations with respect
thereto), other than standby letters of credit incurred by such Person in the
ordinary course of business, (iv) all obligations of such Person to pay the
deferred and unpaid purchase price of property or services, except trade
payables and accrued expenses incurred in the ordinary course of business, (v)
all Capitalized Lease Obligations of such Person, (vi) all Indebtedness of
others secured by a lien on any asset of such Person, whether or not such
Indebtedness is assumed by such Person, (vii) all Indebtedness of others
guaranteed by such Person to the extent of such guarantee and (viii) all
Hedging Obligations of such Person.
The term "Lien" is defined in the Senior Indenture as, with respect to any
asset, any mortgage, lien, pledge, charge, security interest or encumbrance of
any kind in respect of such asset, whether or not filed, recorded or otherwise
perfected under applicable law. For the purposes of the Senior Indenture, the
Company or any Subsidiary shall be deemed to own subject to a Lien any asset
which it has acquired or holds subject to the interest of a vendor or lessor
under any conditional sale agreement, Capitalized Lease Obligation (other than
any Capitalized Lease Obligation relating to any building, structure,
equipment or other property used or to be used in the ordinary course of
business of the Company and the Restricted Subsidiaries) or other title
retention agreement relating to such asset.
The term "Pari Passu Indebtedness" is defined in the Senior Indenture as any
Indebtedness of the Company, whether outstanding on the Issue Date or
thereafter created, incurred or assumed, unless, in the case of any particular
Indebtedness, the instrument creating or evidencing the same or pursuant to
which the same is outstanding expressly provides that such Indebtedness shall
be subordinated in right of payment to the Securities.
The term "Restricted Subsidiary" is defined in the Senior Indenture as any
Subsidiary of the Company (i) substantially all the property of which is
located, or substantially all the business of which is carried on, within the
United States of America (not including its territories and possessions) and
(ii) that owns a Principal Property; provided, however, that the term
"Restricted Subsidiary" shall not include any Subsidiary that is principally
engaged in financing the operations of the Company, or its Subsidiaries, or
both, outside the United States of America. "Principal Property" means any
manufacturing plant or facility located within the United States of America
(other than its territories or possessions) owned by the Company or any
Restricted Subsidiary which, in the opinion of the Board of Directors, is of
material importance to the total business conducted by the Company and its
Restricted Subsidiaries as a whole.
The term "Sale/Leaseback Transaction" is defined in the Senior Indenture as
any arrangement with any Person providing for the leasing by the Company or
any Restricted Subsidiary, for a period of more than three years, of any real
or tangible personal property, which property has been or is to be sold or
transferred by the Company or such Restricted Subsidiary to such Person in
contemplation of such leasing.
PROVISIONS APPLICABLE SOLELY TO SUBORDINATED DEBT SECURITIES
GENERAL
Subordinated Debt Securities will be issued under the Subordinated Indenture
and will rank pari passu with certain other subordinated debt of the Company
that may be outstanding from time to time and will rank junior to all Senior
Indebtedness (including any Senior Debt Securities) of the Company that may be
outstanding from time to time.
SUBORDINATION
The payment of the principal of (and premium, if any) and interest on the
Subordinated Debt Securities is expressly subordinated, to the extent and in
the manner set forth in the Subordinated Indenture, in right of payment to the
prior payment in full of all Senior Indebtedness of the Company. (Section 1501
of the Subordinated Indenture)
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In the event of any dissolution or winding up, or total or partial
liquidation or reorganization of the Company, whether in bankruptcy,
reorganization, insolvency, receivership or similar proceeding, the holders of
Senior Indebtedness will be entitled to receive payment in full of all amounts
due or to become due on or in respect of all Senior Indebtedness before the
holders of the Subordinated Debt Securities are entitled to receive any
payment on account of principal (or premium, if any) or interest on the
Subordinated Debt Securities. (Section 1502 of the Subordinated Indenture) By
reason of subordination of the Subordinated Debt Securities, in the event of
the insolvency of the Company, holders of the Subordinated Debt Securities may
recover less, ratably, than holders of Senior Indebtedness.
Unless otherwise indicated in the applicable Prospectus Supplement, no
payment in respect of the Subordinated Debt Securities shall be made if, at
the time of such payment, there exists a default in payment of all or any
portion of any Senior Indebtedness, and such default shall not have been cured
or waived in writing or the benefits of such subordination in the Subordinated
Indenture shall not have been waived in writing by or on behalf of the holders
of such Senior Indebtedness. In addition, unless otherwise provided in the
applicable Prospectus Supplement, during the continuance of any event of
default (other than a default referred to in the immediately preceding
sentence) with respect to any Senior Indebtedness permitting the holders to
accelerate the maturity thereof and upon written notice thereof given to the
Trustee, with a copy to the Company (the delivery of which shall not affect
the validity of the notice to the Trustee), by any holder of Senior
Indebtedness or its representative, then, unless and until such an event of
default shall have been cured or waived or shall have ceased to exist, no
payment shall be made by the Company with respect to the principal of or
interest on the Subordinated Debt Securities or to acquire any of the
Subordinated Debt Securities or on account of the redemption provisions of the
Subordinated Debt Securities provided, however, that if the holders of the
Senior Indebtedness to which the default relates have not declared such Senior
Indebtedness to be immediately due and payable and within 180 days after the
occurrence of such default (or have declared such Senior Indebtedness to be
immediately due and payable within such period have rescinded such declaration
of acceleration), then the Company shall resume making any and all required
payments in respect of the Securities (including any missed payments). Only
one such payment blockage period may be commenced within any consecutive 365-
day period with respect to the Subordinated Debt Securities. No event of
default which existed or was continuing on the date of the commencement of any
180-day payment blockage period with respect to the Senior Indebtedness
initiating such payment blockage period shall be, or be made, the basis for
the commencement of a second payment blockage period by a holder or
representative of such Senior Indebtedness, whether or not within a period of
365 consecutive days, unless such event of default shall have been cured or
waived for a period of not less than 90 consecutive days (and, in the case of
any such waiver, no payment shall be made by the Company to the holders of
Senior Indebtedness in connection with such waiver other than amounts due
pursuant to the terms of the Senior Indebtedness as in effect at the time of
such default). (1502 of the Subordinated Indenture)
The term "Indebtedness" of any Person at any date is defined in the
Subordinated Indenture as, without duplication, (i) all indebtedness of such
Person for borrowed money (whether or not the recourse of the lender is to the
whole of the assets of such Person or only to a portion thereof), (ii) all
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments, (iii) all obligations of such Person in respect of
letters of credit or other similar instruments (or reimbursement obligations
with respect thereto), other than standby letters of credit incurred by such
Person in the ordinary course of business, (iv) all obligations of such Person
to pay the deferred and unpaid purchase price of property or services, except
trade payables and accrued expenses incurred in the ordinary course of
business, (v) all Capitalized Lease Obligations of such Person, (vi) all
Indebtedness of others secured by a lien on any asset of such Person, whether
or not such Indebtedness is assumed by such Person, (vii) all Indebtedness of
others guaranteed by such Person to the extent of such guarantee and (viii)
all Hedging Obligations of such Person.
The term "Senior Indebtedness" is defined in the Subordinated Indenture as
Indebtedness, either outstanding as of the date of the Subordinated Indenture
or issued subsequent to the date of the Subordinated Indenture, unless such
Indebtedness is either subordinated by its terms in right of payment to any
other Indebtedness of the Company or pari passu with subordinated Indebtedness
of any series, provided that the term "Senior Indebtedness" shall not include
(i) Indebtedness of the Company to any Subsidiary for money borrowed or
advanced from such Subsidiary or (ii) amounts owed (except to banks and other
financial institutions) for goods, materials or services purchased in the
ordinary course of business.
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If Subordinated Debt Securities are issued under the Subordinated Indenture,
the aggregate principal amount of Senior Indebtedness outstanding as of a
recent date will be set forth in the applicable Prospectus Supplement. The
Subordinated Indenture does not restrict the amount of Senior Indebtedness
that the Company may incur.
DESCRIPTION OF CAPITAL STOCK
Under the Company's Restated Certificate of Incorporation as amended (the
"Charter"), the Company is authorized to issue 81,000,000 shares of capital
stock ("Capital Stock") consisting of 1,000,000 shares of Preferred Stock, no
par value, and 80,000,000 shares of Common Stock, par value $1.00 per share.
As of June 30, 1998, there were 41,447,354 shares of Common Stock outstanding
and no shares of Preferred Stock outstanding. Of the authorized shares of
Preferred Stock, 500,000 shares have been designated as Series A Participating
Preferred Stock, as described below under "--Stockholders' Rights Plan."
COMMON STOCK
The Common Stock possesses ordinary voting rights for the election of
directors and in respect of other corporate matters, each share being entitled
to one vote. There are no cumulative voting rights, meaning that the holders
of a majority of the shares voting for the election of directors can elect all
the directors if they choose to do so. The Common Stock carries no preemptive
rights and is not convertible, redeemable or assessable. Subject to the prior
rights of any shares of Preferred Stock that may from time to time be
outstanding, the holders of Common Stock are entitled to dividends in such
amounts and at such times as may be declared by the Board of Directors.
Upon liquidation or dissolution, holders of Common Stock are entitled to
share ratably in all net assets available for distribution to stockholders
after payment of preferential amounts to holders of Preferred Stock. All
outstanding shares of Common Stock are, and the shares of Common Stock to be
sold by the Company in connection with any offering pursuant to this
Prospectus and any Prospectus Supplement when issued will be, duly authorized,
validly issued, fully paid and nonassessable.
The outstanding Common Stock is listed on the New York Stock Exchange under
the symbol "NSI." Any Common Stock issuable upon the conversion or exchange of
Debt Securities or Preferred Stock offered hereunder will be listed, subject
to notice of issuance, on such exchange.
The transfer agent and registrar for the Common Stock is First Chicago Trust
Company of New York.
SECTION 203 OF THE DELAWARE GENERAL CORPORATION LAW
Section 203 of the Delaware General Corporation Law ("DGCL") prevents an
"interested stockholder" (defined in Section 203, generally, as a person
owning 15% or more of a corporation's outstanding voting stock), from engaging
in a "business combination" (as defined in Section 203) with a publicly-held
Delaware corporation for three years following the date such person became an
interested stockholder unless: (i) before such person became an interested
stockholder, the board of directors of the corporation approved the
transaction in which the interested stockholder became an interested
stockholder or approved the business combination; (ii) upon consummation of
the transaction that resulted in the interested stockholder becoming an
interested stockholder, the interested stockholder owned at least 85% of the
voting stock of the corporation outstanding at the time the transaction
commenced (excluding stock held by directors who are also officers of the
corporation and by employee stock plans that do not provide participants with
the rights to determine confidentially whether shares held subject to the plan
will be tendered in a tender or exchange offer); or (iii) following the
transaction in which such person became an interested stockholder, the
business combination is approved by the board of directors of the corporation
and authorized at a meeting of stockholders by the affirmative vote of the
holders of two-thirds of the outstanding voting stock of the corporation not
owned by the interested stockholder. The provisions of Section 203 may have
the effect of delaying, deferring or preventing a change of control of the
Company.
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STOCKHOLDERS' RIGHTS PLAN
The Company has a Stockholders' Rights Plan which it first adopted in 1988 and
amended in 1997 (the "Rights Plan"), the terms and conditions of which are set
forth in an Amended and Restated Rights Agreement (the "Rights Agreement"). The
Rights Plan provides that each share of Common Stock has associated with it a
stock purchase right ( a "Right"). Each Right, when exercisable, entitles the
registered holder to purchase from the Company one one-thousandth of a share of
a series of convertible preferred stock, designated as Series A Participating
Preferred Stock, $0.05 par value (the "Series A Preferred Stock"), at a price of
$160 (the "Purchase Price"), subject to adjustment. The Series A Preferred Stock
purchasable upon the exercise of Rights will contain preferential voting,
dividend, liquidation and other economic rights. The Rights become exercisable
only if a person or group acquires, or has obtained the right to acquire,
beneficial ownership of 15% or more of the outstanding Common Stock without the
Company's prior consent or commences a tender or exchange offer that would
result in such person or group owning 15% or more of the Common Stock without
the Company's prior consent or if certain business combinations or sales of
assets or earning power of the Company are expected to be consummated. If any
person becomes the beneficial owner of 15% or more of the shares of Common Stock
(an "Acquiring Person"), except pursuant to a Permitted Offer (as defined in the
Rights Agreement), each Right will be exercisable for the number of units of one
one-thousandths of a share of Series A Preferred Stock having an average market
value during a specified period of two times the Purchase Price of the Right. In
addition, if, after a person has become an Acquiring Person, the Company is
involved in a merger or other business combination transaction in which it is
not the surviving corporation or in connection with which the Common Stock is
changed or exchanged (other than a merger which follows a Permitted Offer), or
it sells 50% or more of its assets or earning power, each Right that has not
previously been exercised or voided will entitle its holder to purchase that
number of shares of common stock of such other person which at the time of such
transaction, would have a market value of two times the Purchase Price of the
Right. The Rights expire on May 19, 2008, unless earlier redeemed by the
Company. Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including without limitation the right
to vote or receive dividends. The Rights are designed to protect stockholders of
the Company in the event of unsolicited offers to acquire the Company and other
coercive takeover tactics. The Rights may cause substantial dilution to a person
or group that attempts to acquire the Company on terms not approved by the
Board, and therefore would render an unsolicited takeover of the Company more
difficult or less likely to occur. The Rights should not, however, interfere
with any merger or other business combination approved by the Board because the
rights may generally be redeemed in connection with consensual transactions.
IRECTOR LIABILITY
The Charter contains a provision that limits the liability of the Company's
directors to the fullest extent permitted by the DGCL. The provision
eliminates the personal liability of directors to the Company and its
stockholders for monetary damages for breaches of their fiduciary duty of
care. As a result, stockholders may be unable to recover monetary damages
against directors for negligent or grossly negligent acts or omissions in
violation of their duty of care. The provision does not change the liability
of a director for breach of his duty of loyalty to the Company or to
stockholders, for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, for the declaration or
payment of dividends in violation of Delaware law or in respect of any
transaction from which a director received an improper personal benefit. The
Charter provides that if the DGCL is amended to further limit such liability,
then the liability of Company directors will be limited or eliminated to the
maximum extent permitted by law as so amended.
PREFERRED STOCK
The Company is authorized to issue 1,000,000 shares of Preferred Stock, of
which 500,000 shares have been designated as Series A Preferred Stock. Under
the Charter, the Board of Directors may from time to time establish and issue
one or more series of Preferred Stock and fix the designations, powers,
preferences and rights of the shares of such series and the qualifications,
limitations or restrictions thereon, including, but not limited to, dividend
rights, dividend rates, conversion rights, voting rights, rights and terms of
redemption (including
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sinking fund provisions) and liquidation preferences. The number of authorized
shares of Preferred Stock may be increased or decreased (but not below the
number of shares thereof then outstanding) by the affirmative vote of the
holders of a majority of the voting power of all of the then outstanding
shares of the Capital Stock of the Company entitled to vote generally in the
election of directors (the "Voting Stock") voting together as a single class,
without a separate vote of the holders of the Preferred Stock, or any series
thereof, unless a vote of any such holders is required pursuant to any
certificate of designation relating to a series of Preferred Stock.
The following description of the Preferred Stock sets forth certain general
terms and provisions of the Preferred Stock to which any Prospectus Supplement
may relate. Certain other terms of a particular series of Preferred Stock will
be described in the Prospectus Supplement relating to that series. If so
indicated in the Prospectus Supplement, the terms of any such series may
differ from the terms set forth below. The description of certain provisions
of the Preferred Stock set forth below and in any Prospectus Supplement does
not purport to be complete and is subject to and qualified in its entirety by
reference to the Company's Charter and bylaws and the certificate of
designation relating to each such series of Preferred Stock, which will be
filed with the Commission in connection with the offering of such series of
Preferred Stock.
GENERAL
Subject to limitations prescribed by Delaware law and the Company's Charter
and bylaws, the Board of Directors is authorized to fix the number of shares
constituting each series of Preferred Stock and the designations, relative
rights, preferences and limitations thereof, including such provisions as may
be desired concerning voting, redemption, dividends, dissolution, the
distribution of assets, conversion or sinking funds, and such other subjects
or matters as may be fixed by resolution of the Board of Directors or a duly
authorized committee thereof. The Preferred Stock will, when issued, be fully
paid and nonassessable upon issuance against the full payment of the purchase
price therefor, and will not have, or be subject to, any preemptive or similar
rights.
Reference is made to the Prospectus Supplement relating to the series of
Preferred Stock offered thereby for specific terms, including: (i) the class
or series, title and stated value of such Preferred Stock; (ii) the number of
shares of such Preferred Stock offered, the liquidation preference per share
and the offering price of such Preferred Stock; (iii) the dividend rate(s),
period(s) and/or payment date(s) or method(s) of calculation thereof
applicable to such Preferred Stock; (iv) whether dividends on such Preferred
Stock shall be cumulative or not and, if cumulative, the date from which
dividends on such Preferred Stock shall accumulate; (v) the procedures for any
auction and remarketing, if any, for such Preferred Stock; (vi) provisions for
a sinking fund, if any, for such Preferred Stock; (vii) provisions for
redemption, if applicable, of such Preferred Stock; (viii) any listing of such
Preferred Stock on any securities exchange; (ix) the terms and conditions, if
applicable, upon which such Preferred Stock will be convertible into other
securities of the Company, including the conversion price (or manner of
calculation thereof); (x) a discussion of certain federal income tax
considerations applicable to such Preferred Stock; and (xi) any other material
terms, preferences, rights, limitations or restrictions of such Preferred
Stock.
RANK
Unless otherwise specified in the Prospectus Supplement, the Preferred Stock
will, with respect to (as applicable) dividend rights and rights upon
liquidation, dissolution or winding up of the Company, rank (i) senior to all
classes or series of common stock of the Company and to all equity securities
of the Company the terms of which provide that such equity securities are
subordinated to such Preferred Stock, (ii) on a parity with all equity
securities of the Company other than those referred to in clauses (i) and
(iii) and (iii) junior to all equity securities of the Company which the terms
of such Preferred Stock provide will rank senior to it. For these purposes,
the term "equity securities" does not include convertible debt securities.
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DIVIDENDS
Holders of shares of the Preferred Stock of each series shall be entitled to
receive, when, as and if declared by the Board of Directors of the Company,
out of funds legally available therefor, cash dividends at such rates and on
such dates as will be set forth in the applicable Prospectus Supplement.
Different series of the Preferred Stock may be entitled to dividends at
different rates or based upon different methods of determination. Such rates
may be fixed or variable or both. Each such dividend shall be payable to
holders of record as they appear on the stock transfer books of the Company on
such record dates as shall be fixed by the Board of Directors of the Company
or a duly authorized committee thereof.
Dividends on any series of the Preferred Stock may be cumulative or non-
cumulative, as provided in the applicable Prospectus Supplement. Dividends, if
cumulative, will accumulate from and after the date set forth in the
applicable Prospectus Supplement. If the Board of Directors of the Company
fails to declare a dividend payable on a dividend payment date on any series
of the Preferred Stock for which dividends are noncumulative, then the holders
of such series of the Preferred Stock will have no right to receive a dividend
in respect of the dividend period ending on such dividend payment date, and
the Company will have no obligation to pay the dividend accrued for such
period, whether or not dividends on such series are declared payable on any
future dividend payment date.
If any shares of the Preferred Stock of any series are outstanding, no full
dividends shall be declared or paid or set apart for payment on any capital
stock of the Company ranking, as to dividends, on a parity with or junior to
the Preferred Stock of such series for any period, unless (i) if such series
of Preferred Stock has a cumulative dividend, full cumulative dividends have
been or contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof set apart for such payment on the Preferred
Stock of such series for all past dividend periods and the then current
dividend period or (ii) if such series of Preferred Stock does not have a
cumulative dividend, full dividends for the then current dividend period have
been or contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof set apart for such payment on the Preferred
Stock of such series.
When dividends are not paid in full (or a sum sufficient for such full
payment is not so set apart) upon the shares of Preferred Stock of any series
and the shares of any other series of preferred stock ranking on a parity as
to dividends with the Preferred Stock of such series, all dividends declared
upon shares of Preferred Stock of such series and any other series of
preferred stock ranking on a parity as to dividends with such Preferred Stock
shall be declared pro rata so that the amount of dividends declared per share
on the Preferred Stock of such series and such other series of preferred stock
shall in all cases bear to each other the same ratio that accrued and unpaid
dividends per share on the shares of Preferred Stock of such series (which
shall not include any accumulation in respect of unpaid dividends for prior
dividend periods if such Preferred Stock does not have a cumulative dividend)
and such other series of preferred stock bear to each other. No interest, or
sum of money in lieu of interest, shall be payable in respect of any dividend
payment or payments on Preferred Stock of such series which may be in arrears.
Except as provided in the immediately preceding paragraph, unless (i) if
such series of Preferred Stock has a cumulative dividend, full cumulative
dividends on the Preferred Stock of such series have been or contemporaneously
are declared and paid or declared and a sum sufficient for the payment thereof
set apart for payment for all past dividend periods and the then current
dividend period and (ii) if such series of Preferred Stock does not have a
cumulative dividend, full dividends on the Preferred Stock of such series have
been or contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof set aside for payment for the then current
dividend period, no dividends (other than in shares of Common Stock or other
capital stock ranking junior to the Preferred Stock of such series as to
dividends and upon liquidation, dissolution or winding up) shall be declared
or paid or set aside for payment or other distribution shall be declared or
made upon the Common Stock, or any other capital stock of the Company ranking
junior to or on a parity with the Preferred Stock of such series as to
dividends or upon liquidation, nor shall any shares of Common Stock, or any
other capital stock of the Company ranking junior to or on a parity with the
Preferred Stock of such series as to dividends or upon liquidation,
dissolution or winding up be redeemed, purchased or otherwise acquired for
23
<PAGE>
any consideration (or any moneys be paid to or made available for a sinking
fund for the redemption of any such shares) by the Company (except by
conversion into or exchange for other capital stock of the Company ranking
junior to the Preferred Stock of such series as to dividends and upon
liquidation, dissolution or winding up).
REDEMPTION
The terms, if any, on which shares of a series Preferred Stock may be
subject to mandatory redemption or redemption at the option of the Company, in
whole or in part, will be set forth in the Prospectus Supplement relating to
such series.
RIGHTS UPON LIQUIDATION
Upon any voluntary or involuntary liquidation, dissolution or winding up of
the Company, then, before any distribution or payment shall be made to the
holders of any Common Stock, or any other series of capital stock of the
Company ranking junior to such series of Preferred Stock upon liquidation,
dissolution or winding up, the holders of each series of Preferred Stock shall
be entitled to receive out of assets of the Company legally available for
distribution to stockholders liquidating distributions in the amount of the
liquidation preference per share (set forth in the applicable Prospectus
Supplement), plus an amount equal to all accrued and unpaid dividends for the
then current dividend period and, if such series of the Preferred Stock is
cumulative, for all dividend periods prior thereto, all as set forth in the
Prospectus Supplement with respect to such shares.
VOTING RIGHTS
Holders of a series of Preferred Stock will not have any voting rights,
except as from time to time required by law or as indicated in the applicable
Prospectus Supplement; provided, that the holders of shares of any series of
Preferred Stock will not be entitled to more than one vote per share, when
voting as a class with the holders of shares of the Common Stock and if such
Preferred Stock is convertible into Common Stock, then holders can receive one
vote on an as converted basis.
CONVERSION RIGHTS
The terms and conditions, if any, upon which shares of any series of
Preferred Stock are convertible into Common Stock, Debt Securities or another
series of Preferred Stock will be set forth in the applicable Prospectus
Supplement relating thereto. Such terms will include the number of shares of
Common Stock or such other series of Preferred Stock or the principal amount
of Debt Securities into which the Preferred Stock is convertible, the
conversion price (or manner of calculation thereof), the conversion period,
provisions as to whether conversion will be at the option of the holders of
such series of Preferred Stock or the Company, the events requiring an
adjustment of the conversion price and provisions affecting conversion in the
event of the redemption of such series of Preferred Stock.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the Preferred Stock will be set forth
in the applicable Prospectus Supplement.
DESCRIPTION OF WARRANTS
The Company may issue Warrants for the purchase of Debt Securities or
Preferred Stock. Warrants may be issued independently or together with Debt
Securities or Preferred Stock offered by any Prospectus Supplement and may be
attached to or separate from such Debt Securities or Preferred Stock. Each
series of Warrants will be issued under a separate warrant agreement (a
"Warrant Agreement") to be entered into between the Company and a bank or
trust company, as Warrant Agent (the "Warrant Agent"), all as set forth in the
Prospectus Supplement relating to the particular issue of offered Warrants.
The Warrant Agent will act solely as an agent of the Company in connection
with the Warrant certificates relating to the Warrants and will not assume any
obligation or relationship of agency or trust for or with any holders of
Warrant certificates or beneficial owners of Warrants. The following summaries
of certain provisions of the Warrant Agreements and Warrants do not purport to
be complete and are subject to, and are qualified in their entirety by
reference to, all the provisions of the Warrant Agreement and the Warrant
certificates relating to each series of Warrants which will be filed with
24
<PAGE>
the Commission and incorporated by reference as an exhibit to the Registration
Statement of which this Prospectus is a part at or prior to the time of the
issuance of such series of Warrants.
GENERAL
If Warrants are offered, the applicable Prospectus Supplement will describe
the terms of such Warrants, including, the following where applicable: (i) the
offering price; (ii) the denominations and terms of the series of Debt
Securities purchasable upon exercise of such Warrants and whether such Debt
Securities are Senior Debt Securities or Subordinated Debt Securities; (iii)
the designation and terms of any series of Debt Securities or shares of
Preferred Stock with which such Warrants are being offered and the number of
such Warrants being offered with each such Debt Security or shares of
Preferred Stock; (iv) the date, if any, on and after which such Warrants and
any related series of Debt Securities will be transferable separately; (v) the
principal amount of the series of Debt Securities or the aggregate number of
shares of Preferred Stock purchasable upon exercise of each such Warrant and
the price at which such principal amount of Debt Securities of such series or
shares of Preferred Stock may be purchased upon such exercise; (vi) the date
on which the right to exercise such Warrants shall commence and the date (the
"Expiration Date") on which such right shall expire; (vii) whether the
Warrants will be issued in registered or bearer form;(viii) the manner, if
any, in which the exercise price of, and the number of shares covered by, a
Warrant for Preferred Stock is subject to adjustment in certain circumstances;
(ix) any special United States Federal income tax consequences; (x) the terms,
if any, on which the Company may accelerate the date by which the Warrants
must be exercised; and (xi) any other terms of such Warrants.
Warrant certificates may be exchanged for new Warrant certificates of
different denominations, may (if in registered form) be presented for
registration of transfer, and may be exercised at the corporate trust office
of the applicable Warrant Agent or any other office indicated in the
applicable Prospectus Supplement. Prior to the exercise of any Warrant to
purchase Debt Securities, holders of such Warrants will not have any of the
rights of holders of the Debt Securities purchasable upon such exercise,
including the right to receive payments of principal, premium, if any, or
interest, if any, on such Debt Securities or to enforce covenants in the
applicable Indenture. Prior to the exercise of any Warrants to purchase
Preferred Stock, holders of such Warrants will not have any rights of holders
of such Preferred Stock, including the right to receive payments of dividends,
if any, on such Preferred Stock, or to exercise any applicable right to vote.
EXERCISE OF WARRANTS
Each Warrant will entitle the holder thereof to purchase such principal
amount of Debt Securities or number of shares of Preferred Stock, as the case
may be, at such exercise price as shall in each case be set forth in, or
calculable from, the Prospectus Supplement relating to the offered Warrants.
After the close of business on the Expiration Date (or such later date to
which such Expiration Date may be extended by the Company), unexercised
Warrants will become void.
Warrants may be exercised by delivering to the applicable Warrant Agent
payment as provided in the applicable Prospectus Supplement of the amount
required to purchase the Debt Securities or Preferred Stock purchasable upon
such exercise together with certain information set forth on the reverse side
of the Warrant certificate. Warrants will be deemed to have been exercised
upon receipt of payment of the exercise price in cash or by certified or
official bank check, subject to the receipt within five (5) business days of
the Warrant certificate evidencing such Warrants. Upon receipt of such payment
at the corporate trust office of the applicable Warrant Agent or any other
office indicated in the applicable Prospectus Supplement, the Company will, as
soon as practicable, issue and deliver the Debt Securities or Preferred Stock
purchasable upon such exercise. If fewer than all of the Warrants represented
by such Warrant certificate are exercised, a new Warrant certificate will be
issued for the remaining amount of Warrants.
AMENDMENTS AND SUPPLEMENTS TO WARRANT AGREEMENTS
The Warrant Agreements may be amended or supplemented without the consent of
the holders of the Warrants issued thereunder to effect changes that are not
inconsistent with the provisions of the Warrants and that do not adversely
affect the interests of the holders of the applicable Warrants.
25
<PAGE>
PLAN OF DISTRIBUTION
The Company may sell the Securities in and/or outside the United States: (i)
through underwriters; (ii) through dealers acting as principal or as agent;
(iii) directly to a limited number of purchasers or to a single purchaser; or
(iv) through agents. The applicable Prospectus Supplement with respect to the
any offering of Securities will set forth the terms of the offering of the
Securities, including the name or names of any underwriters, dealers or
agents, the purchase price of the Securities and the proceeds to the Company
from such sale, any delayed delivery arrangements, any discounts or
commissions and other items constituting compensation allowed or paid to any
underwriters, dealers or agents, any aggregate initial public offering price
and any discounts or concessions allowed or reallowed or paid to dealers. Any
aggregate initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers may be changed from time to time.
If underwriters are used in the sale, the Securities will be acquired by the
underwriters for their own account and may be resold from time to time in one
or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale. The
Securities may be offered to the public either through underwriting syndicates
represented by one or more managing underwriters or directly by one or more
firms acting as underwriters. The underwriter or underwriters with respect to
a particular underwritten offering of Securities will be named in the
Prospectus Supplement relating to such offering and, if an underwriting
syndicate is used, the managing underwriter or underwriters will be set forth
on the cover of such Prospectus Supplement. Unless otherwise set forth in the
Prospectus Supplement relating thereto, the obligations of the underwriters to
purchase the Securities will be subject to conditions precedent, and the
underwriters will be obligated to purchase all the Securities if any are
purchased.
If dealers are utilized in the sale of Securities in respect of which this
Prospectus is delivered, the Company will sell such Securities to the dealers
acting as principals or agents. The dealers may then resell such Securities to
the public at varying prices to be determined by such dealers at the time of
resale. The terms of the transaction will be set forth in the Prospectus
Supplement relating thereto to the extent required by the Securities Act.
The Securities may be sold directly by the Company or through agents
designated by the Company from time to time. Any agent involved in the offer
or sale of the Securities in respect to 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 relating thereto to the extent
required by the Securities Act. Unless otherwise indicated in the Prospectus
Supplement, any such agent will be acting on a best efforts basis for the
period of its appointment.
The Securities may be sold directly by the Company to institutional
investors or others, who may be deemed to be underwriters within the meaning
of the Securities Act with respect to any resale thereof. The terms of any
such sales, including the terms of any bidding or auction process, will be
described in the Prospectus Supplement relating thereto.
If so indicated in the applicable Prospectus Supplement, the Company will
authorize agents, underwriters or dealers to solicit offers from certain types
of institutions to purchase Securities from the Company at the public offering
price set forth in the Prospectus Supplement pursuant to delayed delivery
contracts providing for payment and delivery on a specified date in the
future. Such contracts will be subject only to those conditions set forth in
the applicable Prospectus Supplement, and the Prospectus Supplement will set
forth the commission payable for solicitation of such contracts.
Agents, dealers and underwriters may be entitled under agreements entered
into with the Company to indemnification by the Company against certain civil
liabilities, including liabilities under the Securities Act, or to
contribution with respect to payments which such agents, dealers or
underwriters may be required to make in respect thereof. Agents, dealers and
underwriters may be customers of, engage in transactions with, or perform
services for the Company in the ordinary course of business or otherwise.
26
<PAGE>
Each series of Securities, other than the Common Stock, will be a new issue
with no established trading market. The Common Stock is listed on the New York
Stock Exchange. Any Common Stock issued upon conversion of a Security sold
pursuant to a Prospectus Supplement will be listed on such exchange, subject
to official notice of issuance. The Company may elect to list any series of
Debt Securities, Preferred Stock or Warrants on an exchange, but is not
obligated to do so. If so indicated in the applicable Prospectus Supplement,
any underwriters or agents to or through whom Securities are sold by the
Company may make a market in such Securities, but such underwriters or agents
will not be obligated to do so and may discontinue any market making at any
time without notice. No assurance can be given as to the liquidity of the
trading market for any Securities.
LEGAL MATTERS
The validity of the Securities will be passed upon for the Company by King &
Spalding, Atlanta, Georgia, and for the underwriters, dealers or other agents
by Cravath, Swaine & Moore, New York, New York.
EXPERTS
The financial statements and schedules incorporated in this Prospectus by
reference to the Annual Report on Form 10-K of National Service Industries,
Inc. for the year ended August 31, 1997 have been audited by Arthur Andersen
LLP, independent public accountants, as indicated in their reports with
respect thereto, and are included herein in reliance upon the authority of
said firm as experts in giving said reports.
27
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
An itemized statement of the estimated amount of all expenses in connection
with the distribution of the securities registered hereby, all of which will
be paid by the Company, is as follows:
<TABLE>
<CAPTION>
Registration fee...................................................... $118,000
<S> <C>
Blue Sky fees and expenses............................................ 15,000
Printing and engraving expenses....................................... 40,000
Legal fees and expenses............................................... 170,000
Accounting fees and expenses.......................................... 165,000
Rating agencies' fees and expenses.................................... 355,000
Trustee's and registrar's fees........................................ 8,000
Miscellaneous fees and expenses....................................... 29,000
--------
Total............................................................... $900,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law ("Section 145")
generally provides that a director or officer of a corporation: (i) shall be
indemnified by the corporation for expenses in defense of any action or
proceeding in connection with his service to the corporation, if he is
successful in defense of the claims made against him; (ii) may, in actions
other than "derivative" and similar actions, be indemnified for expenses,
judgments and settlements even if he is not successful on the merits, if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation (and in a criminal
proceeding, if he had no reasonable cause go believe his conduct was
unlawful); and (iii) may be indemnified by the corporation for expenses (but
not judgments or settlements) incurred to defend or settle any action by the
corporation or a derivative action (such as a suit by a shareholder alleging a
breach by the director or officer of a duty owed to the corporation), even if
he is not successful, provided that he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, provided that no indemnification is permitted without court
approval if the individual was found to be liable to the corporation. Before
the permissive indemnification described in clauses (ii) and (iii) above may
be made pursuant to Section 145, either (i) a majority of disinterested
directors, (ii) a committee of one or more disinterested directors designated
by a majority of disinterested directors, (iii) the stockholders, or (iv)
under certain circumstances, independent legal counsel in a written opinion,
must determine that indemnification is appropriate in the circumstances
because the applicable standards of conduct have been met.
Delaware law permits the advancement of expenses incurred by a proposed
indemnitee by the corporation in advance of final disposition of the action
provided the indemnitee undertakes to repay such advanced expenses if it is
ultimately determined that he is not entitled to indemnification. The
corporation may purchase insurance on behalf of an indemnitee against any
liability asserted against him in his designated capacity, whether or not the
corporation itself would be empowered to indemnify him against such liability.
Delaware law also provides that the above rights will not be deemed
exclusive of other rights of indemnification or advancement of expenses
granted by by-law, agreement, vote of stockholders or disinterested directors
or otherwise, as to action in an indemnitee's official capacity and as to
action in another capacity while holding such office. The registrant's
Certificate of Incorporation and By-laws provide such additional rights.
II-1
<PAGE>
Article Fifteenth of the registrant's Certificate of Incorporation, which
provides contractual indemnification rights, was initially approved by the
registrant's stockholders in 1987. It provides for mandatory indemnification
of directors and officers to the full extent now authorized by the Delaware
General Corporation Law (as described above) or to the further extent
indemnification under the Delaware General Corporation Law is broadened in the
future. Article Fifteenth also mandates advancement of expenses incurred by a
proposed indemnitee, provided that, as long as Delaware law so requires, an
undertaking to repay (as described above) is delivered to the registrant.
Article Fifteenth permits persons indemnified thereunder to bring suit
against the registrant to recover unpaid amounts claimed thereunder, with the
expense of bringing a successful suit to be paid by the registrant. Article
Fifteenth also provides that rights conferred therein are nonexclusive and
that the registrant may maintain insurance to protect a director or officer
against any expense, liability, or loss, whether or not the registrant had the
power under the Delaware General Corporation Law to indemnify such person
against that expense, liability, or loss.
Section 7.8 of the registrant's By-laws provides rights to indemnification
with respect to conduct on or before January 5, 1987, when Article Fifteenth
was initially adopted. Section 7.8 provides indemnification rights which are
similar to, but somewhat narrower than, the rights extended by Article
Fifteenth.
The registrant's directors and officers are insured against losses arising
from any claim against them in such capacities for wrongful acts or omissions,
subject to certain limitations.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <C> <S>
**1.1 -- Form of Underwriting Agreement between the Company and the
Underwriter(s) with respect to Debt Securities.
**1.2 -- Form of Underwriting Agreement between the Company and the
Underwriter(s) with respect to the Preferred Stock.
***1.3 -- Form of Agency Agreement.
***1.4 -- Form of Distribution Agreement.
**4.1 -- Form of Indenture as of , 1998, between the Company and
SunTrust Bank, Atlanta, as trustee (the "Senior Indenture"),
with respect to Senior Debt Securities.
**4.2 -- Form of Indenture dated as of , 1998 between the Company and
SunTrust Bank, Atlanta, as trustee (the "Subordinated
Indenture"), with respect to Subordinated Debt Securities.
The Company agrees to furnish to the Commission upon request a
copy of each instrument with respect to issues of such notes of
the Company, the authorized principal amount of which does not
exceed 10% of the consolidated assets of the Company and its
subsidiaries.
***4.3 -- Form of Designating Amendment for Preferred Stock.
***4.4 -- Form of Warrant Agreement between the Company and the Warrant
Agent.
*5.1 -- Opinion of legal counsel regarding legality of securities being
registered.
**12.1 -- Computation of Ratio of Earnings to Fixed Charges.
*23.1 -- Consent of Arthur Andersen LLP.
*23.2 -- Consent of legal counsel (included in Exhibit 5.1).
**24.1 -- Power of Attorney (included in Part II of the Registration
Statement).
**25.1 -- Statement of Eligibility of Trustee on Form T-1 for Senior Debt
Securities.
**25.2 -- Statement of Eligibility of Trustee on Form T-1 for Subordinated
Debt Securities.
</TABLE>
- --------
*Filed herewith.
**Previously filed.
*** To be filed either by amendment or as an exhibit to a report of the
Company filed pursuant to the Exchange Act and incorporated herein by
reference.
II-2
<PAGE>
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.
(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 a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement.
Provided, however, that paragraphs (1)(i) and (1)(ii) above do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in the periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of
the offering.
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 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.
The undersigned registrant hereby undertakes that:
(1) For the purpose of determining any liability under the Securities Act,
the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b) (1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability Under the Securities Act,
each post- effective amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions in Item 15 above, or otherwise, the
II-3
<PAGE>
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
II-4
<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 Amendment to be
signed on its behalf by the undersigned, thereunto duly authorized, in the
City of Atlanta, State of Georgia on September 4, 1998.
National Service Industries, Inc.
/s/ David Levy
By___________________________________
DAVID LEVY
EXECUTIVE VICE PRESIDENT,
ADMINISTRATION,
AND COUNSEL AND DIRECTOR
Pursuant to the requirements of the Securities Act of 1933, this Amendment
to the Registration Statement has been signed below by the following persons
in the capacities and on the date indicated.
SIGNATURES TITLE DATE
Chairman of the
* Board, President September 4,
- ------------------------------------- and Chief Executive 1998
(JAMES S. BALLOUN) Officer (Principal
Executive Officer)
/s/ David Levy Executive Vice September 4,
- ------------------------------------- President, 1998
(DAVID LEVY) Administration, and
Counsel and
Director
Executive Vice
* President and Chief September 4,
- ------------------------------------- Financial Officer 1998
(BROCK HATTOX) (Principal
Financial Officer)
Vice President and
* Controller September 4,
- ------------------------------------- (Principal 1998
(MARK BACHMANN) Accounting Officer)
Director
* September 4,
- ------------------------------------- 1998
(JOHN L. CLENDENIN)
Director
* September 4,
- ------------------------------------- 1998
(THOMAS C. GALLAGHER)
II-5
<PAGE>
* Director September 4,
- ------------------------------------- 1998
(ROBERT M. HOLDER, JR.)
* Director September 4,
- ------------------------------------- 1998
(JAMES C. KENNEDY)
* Director September 4,
- ------------------------------------- 1998
(BERNARD MARCUS)
* Director September 4,
- ------------------------------------- 1998
(JOHN G. MEDLIN, JR.)
* Director September 4,
- ------------------------------------- 1998
(SAMUEL A. NUNN)
* Director September 4,
- ------------------------------------- 1998
(HERMAN J. RUSSELL)
* Director September 4,
- ------------------------------------- 1998
(BETTY L. SIEGEL)
* Director September 4,
- ------------------------------------- 1998
(BARRIE A. WIGMORE)
By: /s/ David Levy
---------------------------------
DAVID LEVY
ATTORNEY-IN-FACT
II-6
<PAGE>
Exhibit 5.1
[King & Spalding Letterhead]
September 4, 1998
National Service Industries, Inc.
1420 Peachtree Street, N.E.
Atlanta, Georgia 30309
Re: Registration Statement on Form S-3, File No. 333-59627
------------------------------------------------------
Ladies and Gentlemen:
We have acted as counsel for National Services Industries, Inc., a Delaware
corporation (the "Company"), in connection with the preparation of the
Registration Statement on Form S-3, File No. 333-59627 (the "Registration
Statement"), filed with the Securities and Exchange Commission (the
"Commission") on July 22, 1998, as amended on September 4, 1998, under the
Securities Act of 1933 (the "Act"). The Registration Statement relates to the
issuance and sale from time to time, pursuant to Rule 415 under the Act, of the
following securities of the Company with an aggregate public offering price of
up to $400,000,000 or the equivalent thereof in one or more foreign currencies,
as set forth in the prospectus contained in the Registration Statement (the
"Prospectus") and as to be set forth in one or more supplements to the
Prospectus (each such supplement, a "Prospectus Supplement"):
(i) unsecured debt securities ("Debt Securities") consisting of
debentures, notes and/or other evidences of unsecured indebtedness in one
or more series, which may be either senior ("Senior Debt Securities") or
subordinated ("Subordinated Debt Securities") and which may be convertible
into or exchangeable for shares of common stock, par value $1.00 per share,
of the Company ("Common Stock"), shares of preferred stock, no par value,
of the Company (the "Preferred Stock"), or other Debt Securities;
(ii) Preferred Stock, which may be convertible into or exchangeable
for shares of Common Stock or shares of Preferred Stock or Debt Securities;
<PAGE>
National Service Industries, Inc.
, 1998
Page 2
- ------
(iii) warrants to purchase shares of preferred stock (the "Preferred
Stock Warrants") or Debt Securities (the "Debt Warrants"); and
(iv) Common Stock issuable upon the conversion or exchange of Debt
Securities or Preferred Stock to the extent such Debt Securities or
Preferred Stock are, by their terms, convertible into or exchangeable for
shares of Common Stock. (The Debt Warrants and Preferred Stock Warrants are
collectively referred to herein as the "Warrants" and the Debt Securities,
Preferred Stock, Common Stock and Warrants are collectively referred to
herein as the "Securities").
The Debt Securities may be issued under Indentures (each, an "Indenture")
to be entered into between the Company and trustees (the "Trustees") that have
been or will be appointed prior to the issuance of Debt Securities. Warrants
may be issued pursuant to warrant agreements (the "Warrant Agreements") between
the Company and warrant agents to be appointed prior to the issuance of warrants
(each, a "Warrant Agent").
This opinion is being furnished in accordance with the requirements of Item
601(b)(5) of Regulation S-K promulgated under the Act.
In so acting, we have examined and relied upon the accuracy of original,
certified, conformed or photographic copies of such records, agreements,
certificates and other documents as we have deemed necessary or appropriate to
enable us to render the opinions set forth below. In all such examinations, we
have assumed the genuineness of signatures on original documents and the
conformity to such original documents of all copies submitted to us as
certified, conformed or photographic copies and, as to certificates of public
officials and officers of the Company, we have assumed the same to have been
properly given and to be accurate.
The opinions expressed herein are limited in all respects to the laws of
the State of New York, the corporate laws of the State of Delaware and the
federal laws of the United States.
Based on the foregoing, we are of the opinion that:
(i) The Company is a corporation validly existing and, based solely on
a certificate of the Secretary of State of the State of Delaware, in good
standing under the laws of the State of Delaware;
(ii) Upon the due authorization of the issuance of shares of Common
Stock and the issuance and sale thereof as described in the Registration
Statement (together with any applicable Prospectus Supplement), such shares
will be validly issued, fully paid and nonassessable;
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National Service Industries, Inc.
, 1998
Page 3
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(iii) Upon the due authorization of the issuance of shares of a
series of Preferred Stock, including the adoption of a Certificate of
Designation for such Preferred Stock in the form required by applicable law
and the filing of such Certificate of Designation with the Secretary of
State of the State of Delaware, and the issuance and sale thereof as
described in the Prospectus (together with any applicable Prospectus
Supplement), such shares will be validly issued, fully paid and
nonassessable;
(iv) Upon the due authorization of the Warrant Agreements and, when
the final terms thereof have been duly established and approved and when
duly executed and delivered by the Company, and assuming due authorization,
execution and delivery thereof by the applicable Warrant Agent, the Warrant
Agreements will constitute valid and legally binding instruments of the
Company enforceable against the Company in accordance with their respective
terms;
(v) Upon the due authorization of the Warrants and, when the final
terms thereof have been duly established and approved and when duly
executed by the Company, and countersigned by the applicable Warrant Agent
in accordance with the applicable Warrant Agreement and delivered to and
paid for by the purchasers thereof, the Warrants will constitute valid and
legally binding obligations of the Company enforceable against the Company
in accordance with their respective terms;
(vi) Upon the due authorization of the Indentures and, when the final
terms thereof have been duly established and approved and when duly
executed and delivered by the Company, and assuming due authorization,
execution and delivery of the Indentures by the Trustees, the Indentures
will constitute the valid and legally binding instruments of the Company,
enforceable against the Company in accordance with their terms; and
(vii) Upon the due authorization of the Debt Securities and, when the
final terms thereof have been duly established and approved and when duly
executed by the Company, and duly authenticated by the Trustees (or any
Authenticating Agent duly authorized by the Trustees pursuant to the terms
of the Indentures) in accordance with the terms of the applicable Indenture
and delivered to and paid for by the purchasers thereof, the Debt
Securities will constitute valid and legally binding obligations of the
Company, enforceable against the Company in accordance with their terms.
The opinions set forth above are subject, as to enforcement, to (i)
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the enforcement of creditors' rights generally, and
(ii) general equitable principles (regardless of whether enforcement is
considered in a proceeding in equity or at law).
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National Service Industries, Inc.
, 1998
Page 4
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We consent to the filing of this opinion as an exhibit to the Registration
Statement and to the reference to us under the caption "Legal Matters" in the
Prospectus that is included in the Registration Statement.
Very truly yours,
/s/ King & Spalding
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our
reports and to all references to our firm included in or made a part of this
Registration Statement.
ARTHUR ANDERSEN LLP
Atlanta, Georgia
September 4, 1998
