<PAGE>
As filed with the Securities and Exchange Commission on August 25, 1995
Registration No. 33-
===========================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------
CYPRUS AMAX MINERALS COMPANY
AND CYPRUS AMAX FINANCE CORPORATION
(Exact name of registrant as specified in its charter)
--------------------
CYPRUS AMAX MINERALS CYPRUS AMAX MINERALS
COMPANY - DELAWARE COMPANY - 36-2684040
CYPRUS AMAX FINANCE CYPRUS AMAX FINANCE
CORPORATION - DELAWARE CORPORATION - 84-1272742
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
--------------------
9100 EAST MINERAL CIRCLE
ENGLEWOOD, COLORADO 80112
(303) 643-5000
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
PHILIP C. WOLF, ESQ.
SENIOR VICE PRESIDENT,
GENERAL COUNSEL AND SECRETARY
9100 EAST MINERAL CIRCLE
ENGLEWOOD, COLORADO 80112
(303) 643-5000
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
--------------------
Copies to:
RONALD R. LEVINE, II, ESQ.
DAVIS, GRAHAM & STUBBS, L.L.C.
370 SEVENTEENTH STREET
DENVER, COLORADO 80202
(303) 892-9400
--------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC:
From time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, 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. [ ]
--------------------<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===================================================================================================================
Proposed Proposed
Amount maximum maximum
Title of each class of to be offering price aggregate Amount of
securities to be registered registered per unit<F2> offering price<F3> registration fee<F3>
-------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities<F4>
Common Stock (without par value)<F5><F6> $350,000,000 100% $350,000,000 $120,690
Preferred Stock, par value $1.00 per share<F7>
Warrants<F8>
Guarantees<F9>
===================================================================================================================
<FN>
<F1> In U.S. dollars or the equivalent thereof in one or more foreign currencies or currency units or composite
currencies, including the European Currency Unit.
<F2> The proposed maximum initial offering price per unit will be determined, from time to time, by the
Registrant.
<F3> Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o). In no event
will the aggregate initial offering price of all securities issued from time to time pursuant to this
Registration Statement exceed $350,000,000.
<F4> Subject to Footnote (3), there are being registered hereunder an indeterminate principal amount of Debt
Securities as may be sold from time to time by each of the Registrants. If any such Debt Securities are
issued at an original issue discount, then the offering price shall be in such greater principal amount as
shall result in an aggregate initial offering price of up to $350,000,000.
<F5> Subject to Footnote (3), there are being registered hereunder an indeterminate number of shares of Common
Stock as may be sold from time to time by Cyprus Amax Minerals Company. There are also being registered
hereunder an indeterminate number of shares of Common Stock as may be issuable upon conversion of the Debt
Securities, Preferred Stock or Warrants.
<F6> This Registration Statement also applies to Rights under the Company's Stockholders' Rights Plan, which are
attached to and tradeable only with the Shares of Common Stock registered hereby. No registration fees are
required for such rights and the shares underlying such rights as they will be issued for no additional
consideration.
<F7> Subject to Footnote (3), there are being registered hereunder an indeterminate number of shares of Preferred
Stock as may be sold from time to time by Cyprus Amax Minerals Company. There are also being registered
hereunder an indeterminate number of shares of Preferred Stock and Common Stock as may be issuable upon the
conversion of the Debt Securities, Preferred Stock or Warrants registered hereby.
<F8> Subject to Footnote (3), there are being registered hereunder an indeterminate number of Warrants as may be
sold from time to time by Cyprus Amax Minerals Company. There are also being registered hereunder an
indeterminate number of shares of Common Stock, Preferred Stock and Debt Securities as may be issuable upon
the exercise of the Warrants registered hereby.
<F9> Each of the Debt Securities issued by Cyprus Amax Finance Corporation will be accompanied by a Guaranty to
be issued by Cyprus Amax Minerals Company. None of the proceeds will be received by Cyprus Amax Minerals
Company for the Guarantees.
</TABLE>
--------------------
Pursuant to Rule 429 under the Securities Act of 1933, the
Prospectus included in this Registration Statement will also be used
in connection with the issuance of securities registered pursuant to
Registration Statement No. 33-54097 previously filed by the
Registrants on Form S-3 and declared effective on July 12, 1994. This
Registration Statement, which is a new registration statement, also
constitutes Post-Effective Amendment No. 1 to Registration Statement
No. 33-54097, and such Post-Effective Amendment shall hereafter become
effective concurrently with the effectiveness of this Registration
Statement and in accordance with Section 8(c) of the Securities Act of
1933.
The Registrants hereby amend this Registration Statement on such
date or dates as may be necessary to delay its effective date until
the Registrants 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 the Registration Statement shall become effective on
such date as the Commission, acting pursuant to said Section 8(a), may
determine.
<PAGE>
CYPRUS AMAX MINERALS COMPANY
CYPRUS AMAX FINANCE CORPORATION
CROSS REFERENCE SHEET
Pursuant to Item 501(b) of Regulation S-K
<TABLE>
<CAPTION>
Item Number and Caption Prospectus Heading
----------------------- ------------------
<S> <C>
1. Forepart of the Registration Statement and Outside
Front Cover Page of Prospectus. . . . . . . . . . . Forepart of Registration Statement; Outside Front Cover Page
2. Inside Front and Outside Back Cover Pages of
Prospectus. . . . . . . . . . . . . . . . . . . . . Inside Front and Outside Back Cover Pages
3. Summary Information, Risk Factors and Ratio of
Earnings to Fixed Charges . . . . . . . . . . . . . The Company; Ratio of Earnings to Fixed Charges and
Preferred Stock Dividends of the Company
4. Use of Proceeds . . . . . . . . . . . . . . . . . . Use of Proceeds
5. Determination of Offering Price . . . . . . . . . . Plan of Distribution
6. Dilution. . . . . . . . . . . . . . . . . . . . . . Not Applicable
7. Selling Security Holders. . . . . . . . . . . . . . Not Applicable
8. Plan of Distribution. . . . . . . . . . . . . . . . Plan of Distribution
9. Description of Securities to be Registered. . . . . Description of Debt Securities and Guarantees;
Description of Preferred Stock; Description of Depositary
Shares; Description of Common Stock; Description of
Warrants
10. Interests of Named Experts and Counsel. . . . . . . Experts; Validity of Securities
11. Material Changes. . . . . . . . . . . . . . . . . . Incorporation of Certain Documents by Reference
12. Incorporation of Certain Information by Reference . Incorporation of Certain Documents by Reference
13. Disclosure of Commission Position on Indemnification
for Securities Act Liabilities. . . . . . . . . . . Not Applicable
</TABLE>
<PAGE>
SUBJECT TO COMPLETION, Dated August 25, 1995
PROSPECTUS
$600,000,000
CYPRUS AMAX MINERALS COMPANY
DEBT SECURITIES
GUARANTEES
PREFERRED STOCK
COMMON STOCK
WARRANTS
______________________________
CYPRUS AMAX FINANCE CORPORATION
GUARANTEED DEBT SECURITIES
______________________________
Cyprus Amax Minerals Company (the "Company") may offer from time
to time (i) Debt Securities ("Debt Securities"), which may be either
senior debt securities ("Senior Securities"), senior subordinated debt
securities ("Senior Subordinated Securities") or subordinated debt
securities ("Subordinated Securities"), consisting of debentures,
notes, bonds and/or other unsecured evidences of indebtedness in one
or more series, (ii) unconditional and irrevocable guarantees
("Guarantees") of Debt Securities issued by Cyprus Amax Finance
Corporation ("Finance"), a wholly-owned subsidiary of the Company,
(iii) shares of Preferred Stock ("Preferred Stock") in one or more
series, (iv) shares of Common Stock, without par value ("Common
Stock"), or (v) Warrants ("Warrants") to purchase Debt Securities,
Preferred Stock or Common Stock. Finance may offer from time to time
guaranteed Debt Securities, consisting of debentures, notes, bonds
and/or other unsecured evidences of indebtedness in one or more
series, guaranteed by the Company. The foregoing securities are
collectively referred to as the "Securities." The Securities will be
offered at an aggregate initial offering price not to exceed
U.S.$600,000,000, at prices and on terms to be determined at the time
of sale.
The accompanying Prospectus Supplement sets forth with regard to
the particular Securities in respect of which this Prospectus is being
delivered (i) in the case of Debt Securities, the title, aggregate
principal amount, denominations (which may be in United States
dollars, in any other currency, currencies or currency unit, including
the European Currency Unit), maturity, rate, if any (which may be
fixed or variable) or method of calculation thereof, and time of
payment of any interest, any terms for redemption at the option of the
Company (or, in the case of Debt Securities issued by Finance,
Finance) or the holder, any terms for sinking fund payments, any
conversion or exchange rights, any listing on a securities exchange
and the initial public offering price and any other terms in
connection with the offering and sale of such Debt Securities, (ii) in
the case of Preferred Stock, the designation, aggregate principal
amount, and stated value and liquidation preference per share, initial
public offering price, dividend rate (or method of calculation), dates
on which dividends shall be payable and dates from which interest
shall accrue, any redemption or sinking fund provisions, any
conversion or exchange rights, whether the Company has elected to
offer the Preferred Stock in the form of depositary shares, any
listing of the Preferred Stock on a securities exchange, and any other
terms in connection with the offering and sale of such Preferred
Stock; (iii) in the case of Common Stock, the number of shares of
Common Stock and the terms of the offering thereof; and (iv) in the
case of Warrants, the number and terms thereof, the designation and
the number of Securities issuable upon their exercise, the exercise
price, any listing of the Warrants or the underlying Securities on a
securities exchange and any other terms in connection with the
offering, sale and exercise of the Warrants. The Prospectus
Supplement will also contain information, as applicable, about certain
United States Federal income tax considerations relating to the
Securities in respect of which this Prospectus is being delivered.
The Senior Securities will rank equally with all other
unsubordinated and unsecured indebtedness of the Company. The Senior
Subordinated Securities will be subordinated to all existing and
future Senior Indebtedness (as defined) of the Company, and senior to
all existing and future Subordinated Indebtedness (as defined) of the
Company. The Subordinated Securities will be subordinated to all
existing and future Senior
<PAGE>
Indebtedness (as defined) of the Company. All or a portion of any
Debt Securities may be issued in permanent global form.
The Company's Common Stock is listed on the New York Stock
Exchange (Symbol: "CYM"). Any Common Stock offered will be listed,
subject to notice of issuance, on such exchange. See "Price Range of
Common Stock and Dividends."
The Company and Finance may sell Securities to or through one or
more underwriters, and also may sell Securities directly to other
purchasers or through agents. The accompanying Prospectus Supplement
sets forth the names of any underwriters or agents involved in the
sale of the Securities in respect of which this Prospectus is being
delivered, the principal amounts, if any, to be purchased by
underwriters and the compensation, if any, of such underwriters or
agents. See "Plan of Distribution" herein.
______________________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR
HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTA-
TION TO THE CONTRARY IS A CRIMINAL OFFENSE.
______________________________
This Prospectus may not be used to consummate sales of Securities
unless accompanied by a Prospectus Supplement.
The date of this Prospectus is _______________, 1995
<PAGE>
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO
GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS OR IN THE PROSPECTUS
SUPPLEMENT, AND, IF GIVEN OR MADE SUCH INFORMATION OR REPRESENTATIONS
MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY,
FINANCE OR ANY UNDERWRITER, AGENT OR DEALER. THIS PROSPECTUS AND THE
ACCOMPANYING PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO SELL
OR A SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN THE
SECURITIES TO WHICH THEY RELATE OR AN OFFER TO SELL, OR A SOLICITATION
OF AN OFFER TO BUY, TO ANY PERSON IN ANY JURISDICTION WHERE SUCH AN
OFFER TO OR SOLICITATION WOULD BE UNLAWFUL. NEITHER THE DELIVERY OF
THIS PROSPECTUS NOR THE ACCOMPANYING PROSPECTUS SUPPLEMENT, NOR ANY
SALE MADE THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE THE
IMPLICATION THAT THE INFORMATION CONTAINED OR INCORPORATED BY
REFERENCE HEREIN OR THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO
THEIR RESPECTIVE DATES.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934 ("Exchange Act") and in accordance
therewith files reports, proxy statements and other information with
the Securities and Exchange Commission ("Commission"). Such reports,
proxy statements and other information filed by the Company can be
inspected and copied at the public reference facilities maintained by
the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 and
at its Regional Offices located at Northwestern Atrium Center, 500
West Madison Street, Suite 1400, Chicago, Illinois 60661-2511, and
7 World Trade Center, 13th Floor, New York, New York 10007. Copies of
such material can be obtained at prescribed rates from the Public
Reference Section of the Commission, 450 Fifth Street, N.W. Plaza,
Washington, D.C. 20549. In addition, such reports and proxy
statements can be inspected at the offices of the New York Stock
Exchange, Inc., 20 Broad Street, New York, New York 10005.
Finance is a wholly-owned subsidiary of the Company. It
currently is not independently subject to the information requirements
of the Exchange Act. Finance has received a conditional exemption
pursuant to Section 12(h) of the Exchange Act from the informational
requirements of such Act and anticipates that no independent reports
concerning Finance will be sent to holders of Debt Securities issued
by Finance.
The Company and Finance have filed with the Commission a
Registration Statement on Form S-3 (the "Registration Statement")
under the Securities Act of 1933 (the "Securities Act") with respect
to the Securities offered hereby. This Prospectus, which constitutes
a part of the Registration Statement, does not contain all the
information set forth in the Registration Statement in accordance with
the rules and regulations of the Commission, and reference is hereby
made to the Registration Statement and the exhibits thereto for
further information with respect to the Company, Finance and the
Securities.
The Registration Statement and the exhibits thereto can be
obtained from or inspected and copied at the public reference
facilities maintained by the Commission as described above.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission
pursuant to the Exchange Act are incorporated herein by reference:
1. Annual Report on Form 10-K for the year ended December 31,
1994.
2. Quarterly Reports on Form 10-Q for the quarterly periods
ended March 31, 1995 and June 30, 1995.
3. Registration Statement on Form 8-A, dated March 3, 1989, as
amended, for the Company's Preferred Share Purchase Rights.
-2-<PAGE>
4. Registration Statement on Form 10, dated July 11, 1985 for
the Company's Common Stock.
5. All documents filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequently to the date of this Prospectus and
prior to the termination of the offering of the Securities
shall be deemed to be incorporated herein by reference.
Any statement contained herein or 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 other subsequently filed document which also is or is deemed to be
incorporated by reference herein or in the Prospectus Supplement
modifies or supersedes such statement. Any such statement so modified
or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
The Company will furnish without charge to each person, including
any beneficial owner, to whom this Prospectus is delivered, upon the
request of such person, a copy of any of the documents incorporated by
reference herein, except for the exhibits to such documents (unless
such exhibits are specifically incorporated by reference into such
documents). Requests should be directed to 9100 East Mineral Circle,
Englewood, Colorado 80112 (telephone (303) 643-5000), Attention:
Investor Relations.
THE COMPANY
Cyprus Amax Minerals Company ("Cyprus Amax" or the "Company") is
a diversified mining company engaged, directly or through its
subsidiaries, in the exploration for and extraction, processing and
marketing of mineral resources. Cyprus Amax is among the world's
largest producers of copper, molybdenum, and lithium, and is one of
the nation's largest coal producers. The Company reviews possible
business transactions from time to time and may engage in business
acquisitions or dispositions in the future. Cyprus Amax is
incorporated in Delaware and operates primarily in the United States.
As of December 31, 1994, Cyprus Amax employed approximately 9,500
employees.
The Company's principal executive office is located at 9100 East
Mineral Circle, Englewood, Colorado 80112, and its telephone number is
(303) 643-5000.
Because the Company is primarily a holding company, conducting
business generally through its subsidiaries, the ability of the
Company to meet its obligations under the Debt Securities and its
other indebtedness and to pay dividends on its Preferred Stock and
Common Stock will be dependent on the earnings and cash flow of its
subsidiaries and the ability of its subsidiaries to pay dividends and
to advance funds to the Company. In addition, the Company's rights
and the rights of its creditors and securities holders, including the
holders of the Securities, to participate in the assets of any
subsidiary upon such subsidiary's liquidation or recapitalization will
be subject to the prior claims of such subsidiary's creditors, except
to the extent that the Company may itself be a creditor with
recognized claims against any such subsidiary. A substantial amount
of the Company's consolidated debt represents claims of the creditors
of the Company's subsidiaries.
Finance is a wholly-owned subsidiary of the Company which was
incorporated under the laws of the state of Delaware on May 26, 1994.
The primary purpose of Finance is to issue guaranteed Debt Securities
and to loan to or invest the proceeds in the Company or subsidiaries.
Finance will be prohibited from issuing any capital stock to any
person other than the Company and its subsidiaries. Finance does not
now, and in the near future does not expect to, lease or own any
material facilities or operating property. Finance's principal
executive office is located at 9100 East Mineral Circle, Englewood,
Colorado 80112, telephone (303) 643-5000.
-3-<PAGE>
USE OF PROCEEDS
Except as otherwise described in the accompanying Prospectus
Supplement or any Pricing Supplement, the net proceeds from the sale
of Securities will be used for general corporate purposes, which may
include refinancings of indebtedness, working capital, capital
expenditures, acquisitions and repurchases and redemptions of
securities.
<TABLE>
<CAPTION>
RATIOS OF EARNINGS TO FIXED CHARGES AND
EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
Six Months Year ended December 31,
ended ---------------------------------------------
June 30, 1995 1994 1993 1992 1991 1990
------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Consolidated ratio of earnings to fixed charges. . . 4.5 2.7 3.3 <F1> 2.5 5.5
Consolidated ratio of earnings to fixed charges
and preferred stock dividends. . . . . . . . . . . 3.9 2.3 3.1 <F2> 1.6 3.4
____________________
<FN>
<F1> Earnings for the year ended December 31, 1992 were inadequate to cover fixed charges by $332 million.
<F2> Earnings for the year ended December 31, 1992 were inadequate to cover combined fixed charges and preferred
stock dividend requirements by $347 million.
</TABLE>
For purposes of the ratio of earnings to fixed charges,
"earnings" includes income before income taxes, the cumulative effect
of a change in accounting principle and fixed charges. "Fixed
charges" consist of interest on all indebtedness and that portion of
rental expense that management believes to be representative of
interest. For purposes of calculating the ratio of earnings to
combined fixed charges and preferred stock dividends, the preferred
stock dividend requirements were assumed to be equal to the pretax
earnings which would be required to cover such dividend requirements.
The amount of such pretax earnings required to cover preferred stock
dividends was computed using tax rates for the applicable year.
-4-<PAGE>
PRICE RANGE OF COMMON STOCK AND DIVIDENDS
The Company's Common Stock is listed on the New York Stock
Exchange under the symbol ("CYM"). The following table sets forth,
for the periods shown, the range of high and low sales prices of the
Common Stock on the New York Stock Exchange and the cash dividends
declared on the Common Stock:
<TABLE>
<CAPTION>
Common Stock
--------------------------
Dividends
High Low Declared
---- --- ---------
<S> <C> <C> <C>
1992
First quarter. . . . . . . . . . . . . . . . . 23 3/4 18 1/2 .20
Second quarter . . . . . . . . . . . . . . . . 28 1/2 19 .20
Third quarter. . . . . . . . . . . . . . . . . 32 26 5/8 .20
Fourth quarter . . . . . . . . . . . . . . . . 32 25 3/4 .25<F1>
1993
First quarter. . . . . . . . . . . . . . . . . 36 3/8 30 3/4 .20
Second quarter . . . . . . . . . . . . . . . . 33 1/8 22 7/8 .20
Third quarter. . . . . . . . . . . . . . . . . 28 1/4 23 3/8 .20
Fourth quarter . . . . . . . . . . . . . . . . 26 5/8 21 1/4 .20
1994
First quarter. . . . . . . . . . . . . . . . . 33 3/8 25 5/8 .20
Second quarter . . . . . . . . . . . . . . . . 31 7/8 25 3/4 .20
Third quarter. . . . . . . . . . . . . . . . . 32 1/2 28 3/8 .20
Fourth Quarter . . . . . . . . . . . . . . . . 31 5/8 23 7/8 .30<F2>
1995
First quarter. . . . . . . . . . . . . . . . . 29 7/8 24 3/4 .20
Second quarter . . . . . . . . . . . . . . . . 29 25 3/8 .20
Third quarter (through August 24). . . . . . . 32 1/8 27/5/8 .20
____________________
<FN>
<F1> Includes a special dividend of $.05 per share.
<F2> Includes a special dividend of $.10 per share.
</TABLE>
If shares of Common Stock or Securities convertible or
exercisable for Common Stock are being offered, a recent last sale
price of the Common Stock will be set forth on the cover page of the
Prospectus Supplement.
Determinations by the Board of Directors of the Company of the
amount and timing of future dividends will be based upon the Company's
earnings, cash needs, capital requirements and other relevant factors.
The Board of Directors will continue to evaluate the Company's
performance and the appropriateness of dividends. It is currently
anticipated that dividends will continue to be paid during 1995.
There is no established trading market for the Company's Series A
Convertible Preferred Stock, which was issued in the Company's merger
with AMAX, Inc. in 1993 (the "Cyprus/Amax Merger").
-5-<PAGE>
DESCRIPTION OF DEBT SECURITIES AND GUARANTEES
Debt Securities may be issued time to time in one or more series
by the Company or by Finance. In the event that any series of Debt
Securities is issued by Finance, such Debt Securities will be offered
together with unconditional and irrevocable guarantees issued by the
Company. In the following description, references to the Issuer refer
to the Company, in the case of a series of Debt Securities issued by
the Company, and to the Company and Finance, in the case of a series
of Debt Securities issued by Finance.
The Debt Securities will constitute either indebtedness
designated as Senior Indebtedness ("Senior Securities"), indebtedness
designated as Senior Subordinated Indebtedness ("Senior Subordinated
Securities") or indebtedness designated as Subordinated Indebtedness
("Subordinated Securities"). The particular terms of each series of
Securities offered by a particular Prospectus Supplement and, if such
Debt Securities are offered by Finance, the particular terms of the
Guarantees offered in connection therewith, will be described therein.
Senior Securities, Senior Subordinated Securities and Subordinated
Securities will each be issued under a separate indenture
(individually an "Indenture" and collectively the "Indentures") to be
entered into prior to the issuance of such Debt Securities. The
Indentures will be substantially identical, except for provisions
relating to subordination and Guarantees. See "Subordination of
Senior Subordinated Securities, Subordinated Securities and
Guarantees". There will be a separate Trustee (individually a
"Trustee" and collectively the "Trustees') under each Indenture.
Information regarding the Trustee under an Indenture will be included
in any Prospectus Supplement relating to the Debt Securities issued
thereunder. The following discussion includes a summary description
of all material terms of the Indentures, other than terms which are
specific to a particular series of Debt Securities and which will be
described in the Prospectus Supplement relating to such series. The
following summaries do not purport to be complete and are subject to,
and are qualified in their entirety by reference to, all of the
provisions of the Indentures, including the definitions therein of
certain terms capitalized in this Prospectus. Wherever particular
Sections or Articles or defined terms of the Indentures are referred
to herein or in a Prospectus Supplement, such Sections or defined
terms are incorporated herein or therein by reference.
The Debt Securities may be issued from time to time in one or
more series. The particular terms of each series of Debt Securities
offered by any Prospectus Supplement or Prospectus Supplements will be
described in such Prospectus Supplement or Prospectus Supplements
relating to such series.
Other than as set forth under "Certain Covenants of the Company,"
and only to the extent applicable to the Debt Securities of a
particular series, as indicated in the applicable Prospectus
Supplement, there are no provisions of the Indentures which afford
holders of the Debt Securities protection in the event of a highly
leveraged transaction involving the Company.
GENERAL
The Indentures do not limit the aggregate amount of Debt
Securities which may be issued thereunder, and Debt Securities may be
issued thereunder from time to time in separate series up to the
aggregate amount from time to time authorized by the Issuer for each
series. Debt Securities of a series may be issuable in registered
form without coupons ("Registered Debt Securities"), in bearer form
with or without coupons attached ("Bearer Debt Securities") or in the
form of one or more Global Securities in registered or bearer form
(each, a "Global Security"). Bearer Debt Securities, if any, will be
offered only to non-United States persons and to offices located
outside the United States of certain United States financial
institutions. The Senior Securities will be unsecured and
unsubordinated obligations of the Issuer and will rank equally and
ratably with other unsecured and unsubordinated indebtedness of the
Issuer. The Senior Subordinated Securities and the Subordinated
Securities will be subordinated in right of payment to the prior
payment in full of the Senior Indebtedness (as defined) of the Issuer,
as described below under "Subordination of Subordinated Securities"
and in a Prospectus Supplement applicable to an offering of Senior
Subordinated Securities or Subordinated Securities.
-6-<PAGE>
Any Debt Security issued by Finance will be unconditionally and
irrevocably guaranteed by the Company as to payment of principal,
premium, if any, and interest.
The applicable Prospectus Supplement or Prospectus Supplements
will describe the following terms of the series of Debt Securities in
respect of which this Prospectus is being delivered: (1) the issuer
(which may be the Company or Finance) and title of such Debt
Securities; (2) any limit on the aggregate principal amount of such
Debt Securities; (3) whether such Debt Securities will be issued as
Registered Debt Securities, Bearer Debt Securities or any combination
thereof, and any limitation on issuance of such Bearer Debt Securities
and any provisions regarding the transfer or exchange of such Bearer
Debt Securities, including exchange for Registered Debt Securities of
the same series; (4) whether any of such Debt Securities are to be
issuable as a Global Security, whether such Global Securities are to
be issued in temporary global form or permanent global form, and, if
so, the terms and conditions, if any, upon which interests in such
Securities in global form may be exchanged, in whole or in part, for
the individual Debt Securities represented thereby; (5) the person to
whom any interest on any Debt Security of the series shall be payable
if other than the person in whose name the Debt Security is registered
on the Regular Record Date; (6) the date or dates on which such Debt
Securities will mature; (7) the rate or rates of interest, if any, or
the method of calculation thereof, which such Debt Securities will
bear; (8) the date or dates from which any such interest will accrue,
the Interest Payment Dates on which any such interest on such Debt
Securities will be payable and the Regular Record Date for any
interest payable on any Interest Payment Date; (9) the place or places
where the principal of, premium (if any) and interest on such Debt
Securities will be payable; (10) the period or periods within which,
the events upon the occurrence of which, and the price or prices at
which, such Debt Securities may, pursuant to any optional or mandatory
provisions, be redeemed or purchased, in whole or in part, by the
Issuer and any terms and conditions relevant thereto; (11) the
obligation of the Issuer, if any, to redeem or repurchase such Debt
Securities at the option of the Holders; (12) the denominations in
which any such Debt Securities will be issuable, if other than
denominations of $1,000 and any integral multiple thereof; (13) the
currency, currencies or currency unit or units of payment of principal
of and any premium and interest on such Debt Securities if other than
U.S. dollars; (14) any index or formula used to determine the amount
of payments of principal of and any premium and interest on such Debt
Securities; (15) if the principal of or any premium or interest on
such Debt Securities is to be payable, at the election of the Issuer
or a Holder thereof, in one or more currencies or currency units other
than that or those in which such Debt Securities are stated to be
payable, the currency, currencies or currency units in which payment
of the principal of and any premium and interest on Debt Securities of
such series as to which such election is made shall be payable, and
the periods within which and the terms and conditions upon which such
election is to be made; (16) if other than the principal amount
thereof, the portion of the principal amount of such Debt Securities
of the series which will be payable upon declaration of the
acceleration of the Maturity thereof; (17) the applicability of any
provisions described under "Certain Covenants of the Company"; (18)
the applicability of any provisions described under "Defeasance"; (19)
the terms and conditions, if any, pursuant to which such Debt
Securities are convertible or exchangeable into Common Stock or other
securities and (20) any other terms of such Debt Securities not
inconsistent with the provisions of the respective Indentures.
Debt Securities may be issued at a discount from their principal
amount. United States Federal income tax considerations and other
special considerations applicable to any such Original Issue Discount
Securities will be described in the applicable Prospectus Supplement.
If the purchase price of any of the Debt Securities is
denominated in a foreign currency or currencies or a foreign currency
unit or units or if the principal of and any premium and interest on
any series of Debt Securities is payable in a foreign currency or
currencies or a foreign currency unit or units, the restrictions,
elections, general tax considerations, specific terms and other
information with respect to such issue of Debt Securities and such
foreign currency or currencies or foreign currency unit or units will
be set forth in the applicable Prospectus Supplement.
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GUARANTEES
The Company will unconditionally and irrevocably guarantee, on a
senior, senior subordinated or subordinated basis, the due and
punctual payment of principal of, premium, if any, and interest on any
Debt Securities that are issued by Finance, and the due and punctual
payment of any sinking fund payments thereon, when and as the same
shall become due and payable, whether at the maturity date, by
declaration of acceleration, call for redemption or otherwise. See
"Subordination of Senior Subordinated Securities, Subordinated
Securities and Guarantees."
SENIOR SECURITIES
The Senior Securities will rank pari passu with all other
unsecured and unsubordinated debt of the Issuer and senior to the
Senior Subordinated Securities and Subordinated Securities.
SUBORDINATION OF SENIOR SUBORDINATED SECURITIES, SUBORDINATED
SECURITIES AND GUARANTEES
The indebtedness evidenced by the Senior Subordinated Securities
and the Subordinated Securities will be subordinated and junior in
right of payment to the extent set forth in the respective Indenture
to the prior payment in full of amounts then due on all Senior
Indebtedness (as defined below). No payment shall be made by the
Issuer on account of principal of (or premium, if any) or interest on
the Senior Subordinated Securities or the Subordinated Securities or
on account of the purchase or other acquisition of Senior Subordinated
Securities or the Subordinated Securities, if the maturity of any of
the Senior Subordinated Securities or the Subordinated Securities
shall have been accelerated, until all amounts due have been paid on
all outstanding Senior Indebtedness, or if there shall have occurred
and be continuing (i) a default in the payment of principal (or
premium, if any) or interest on any Senior Indebtedness beyond any
applicable grace period with respect thereto, or any event of default
with respect to any Senior Indebtedness resulting in the acceleration
of the maturity of such Senior Indebtedness, unless and until such
default or event of default shall have been cured or waived or shall
have ceased to exist and such acceleration shall have been rescinded
or annulled or (ii) any such default in payment or event of default
shall be the subject of a judicial proceeding. By reason of these
provisions in the event of default of any Senior Indebtedness, whether
now outstanding or hereafter issued, payments of principal of (and
premium, if any) and interest on the Senior Subordinated Securities or
the Subordinated Securities may not be permitted to be made until such
default is cured or such Senior Indebtedness is paid in full.
Upon any distribution of assets of the Issuer upon any
receivership, dissolution, winding-up, liquidation, reorganization or
similar proceedings of the Issuer, whether voluntary or involuntary,
or in bankruptcy or insolvency, all principal of (and premium, if any)
and interest due upon all Senior Indebtedness must be paid in full
before the Holders of the Senior Subordinated Securities and the
Subordinated Securities or the Trustee is entitled to receive or
retain any assets so distributed in respect of the Senior Subordinated
Securities or the Subordinated Securities. By reason of this
provision, in the event of insolvency Holders of the Senior
Subordinated Securities and the Subordinated Securities may recover
less, ratably, than other creditors of the Issuer, including holders
of Senior Indebtedness.
"Senior Indebtedness" means, when used with respect to any series
of Senior Subordinated Securities or Subordinated Securities, the
principal of (and premium, if any) and interest on (a) all
indebtedness of the Issuer (including indebtedness of others
guaranteed by the Issuer) other than the Subordinated Securities which
is (i) for money borrowed or (ii) evidenced by a note or similar
instrument given in connection with the acquisition of any businesses,
properties or assets of any kind, (b) obligations of the Issuer as
lessee under leases required to be capitalized on the balance sheet of
the lessee under generally accepted accounting principles, and
(c) amendments, renewals, extensions, modifications and refunding of
any such indebtedness or obligation, in any such case whether
outstanding on the date of the Senior Subordinated Indenture or the
Subordinated Indenture or thereafter created, incurred or assumed,
except that, with respect to the Senior Subordinated Securities, any
particular indebtedness, obligation, liability, guaranty, assumption,
deferral, renewal, extension
-8-<PAGE>
or refunding shall not constitute "Senior Indebtedness" if it is
expressly stated in the governing terms, or in the assumption or
guarantee, thereof that the indebtedness involved is not senior in
right of payment to the Senior Subordinated Securities or that such
indebtedness is pari passu with or junior to the Senior Subordinated
Securities and, with respect to Subordinated Securities, any
particular indebtedness, obligation, liability, guaranty, assumption,
deferral, renewal, extension or refunding shall not constitute "Senior
Indebtedness" if it is expressly stated in the governing terms, or in
the assumption or guarantee, thereof that the indebtedness involved is
not senior in right of payment to the Subordinated Securities or that
such indebtedness is pari passu with or junior to the Subordinated
Securities. As of June 30, 1995, the amount of Senior Indebtedness of
the Company was approximately $1.66 billion. Finance has no
indebtedness at the date of this Prospectus. The Senior Subordinated
Indenture and Subordinated Indenture do not prohibit or limit the
incurrence of additional Senior Indebtedness.
If this Prospectus is being delivered in connection with a series
of Senior Subordinated Securities or Subordinated Securities, the
accompanying Prospectus Supplement or the information incorporated
herein by reference will set forth the approximate amount of Senior
Indebtedness outstanding as of the end of the Issuer's most recent
fiscal quarter.
In the event that Senior Subordinated Securities or Subordinated
Securities are issued by Finance, the related Guarantees issued by the
Company will be subordinate and junior in right of payment to Senior
Indebtedness of the Company on substantially the same terms and
conditions as the obligations of Finance under the Senior Subordinated
Securities or the Subordinated Securities, as the case may be, will be
subordinate and junior in right of payment to Senior Indebtedness.
FORM, EXCHANGE, REGISTRATION, CONVERSION, TRANSFER AND PAYMENT
Debt Securities are issuable in definitive form as Registered
Debt Securities, as Bearer Debt Securities or both. Unless otherwise
indicated in an applicable Prospectus Supplement, Bearer Debt
Securities will have interest coupons attached. Debt Securities are
also issuable in temporary or permanent global form.
Registered Debt Securities of any series will be exchangeable for
other Registered Debt Securities of the same series and of a like
aggregate principal amount and tenor of different authorized
denominations. In addition, with respect to any series of Bearer Debt
Securities, at the option of the holder, subject to the terms of the
Indenture, such Bearer Debt Securities (with all unmatured coupons,
except as provided below, and all matured coupons in default) will be
exchangeable into Registered Debt Securities of the same series of any
authorized denominations and of a like aggregate principal amount and
tenor. Bearer Debt Securities surrendered in exchange for Registered
Debt Securities between a Regular Record Date or a Special Record Date
and the relevant date for payment of interest shall be surrendered
without the coupon relating to such date for payment of interest, and
interest accrued as of such date will not be payable in respect of the
Registered Debt Security issued in exchange for such Bearer Debt
Security, but will be payable only to the holder of such coupon when
due in accordance with the terms of the Indenture.
In connection with its sale during the restricted period (as
defined below), no Bearer Debt Security (including a Debt Security in
permanent global form that is either a Bearer Debt Security or
exchangeable for Bearer Debt Securities) shall be mailed or otherwise
delivered to any location in the United States (as defined under "-
Limitations on Issuance of Bearer Debt Securities") and a Bearer Debt
Security may be delivered outside the United States in definitive form
in connection with its original issuance only if prior to delivery the
person entitled to receive such Bearer Debt Security furnishes written
certification, in the form required by the Indenture, to the effect
that such Bearer Debt Security is owned by: (a) a person (purchasing
for its own account) who is not a United States person (as defined
under "-Limitations on Issuance of Bearer Debt Securities"); (b) a
United States person who (i) is a foreign branch of a United States
financial institution purchasing for its own account or for resale or
(ii) acquired such Bearer Debt Security through the foreign branch of
a United States financial institution and who for purposes of the
certification holds such Bearer Debt Security through such financial
institution on the date of certification and, in either case, such
United States
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financial institution certifies to the Issuer or the distributor
selling the Bearer Debt Security within a reasonable time stating that
it agrees to comply with the requirements of Section 165(j)(3)(A), (B)
or (C) of the United States Internal Revenue Code of 1986, as amended
(the "Code"), and the regulations thereunder, or (c) a United States
or foreign financial institution for purposes of resale within the
"restricted period" as defined in United States Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(7). A financial institution described in
clause (c) of the preceding sentence (whether or not also described in
clauses (a) and (b)) must certify that it has not acquired the Bearer
Debt Security for purpose of resale, directly or indirectly, to a
United States person or to a person within the United States or its
possessions. In the case of a Bearer Debt Security in permanent
global form, such certification must be given in connection with
notation of a beneficial owner's interest therein in connection with
the original issuance of such Debt Security or upon exchange of a
portion of a temporary global Debt Security.
Debt Securities may be presented for exchange as provided above,
and Registered Debt Securities may be presented for registration of
transfer (with the form of transfer endorsed thereon duly executed),
at the office or agency of the Issuer maintained for such purposes and
at any other office or agency maintained for such purpose with respect
to any series of Debt Securities and referred to in the applicable
Prospectus Supplement, without a service charge and upon payment of
any taxes and other governmental charges as described in the
Indenture. Such transfer or exchange will be effected upon the Issuer
or its agent, as the case may be, being satisfied with the documents
of title and identity of the person making the request.
In the event of any redemption in part, the Issuer 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 selection of Debt Securities of that
series for redemption and ending on the close of business on (A) if
Debt Securities of the series are issued only as Registered Debt
Securities, the day of mailing of the relevant notice of redemption
and (B) if Debt Securities of the series are issued as Bearer Debt
Securities, the day of the first publication of the relevant notice of
redemption except that, if Securities of the series are also issued as
Registered Debt Securities and there is no publication, the day of
mailing of the relevant notice of redemption; (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; or (iii) exchange any
Bearer Debt Security called for redemption, except to exchange such
Bearer Debt Security for a Registered Debt Security of that series and
like tenor which is simultaneously surrendered for redemption.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the applicable Prospectus
Supplement, payment of principal of (and any premium) and interest on
Bearer Debt Securities will be payable, subject to any applicable laws
and regulations, in the designated currency or currency unit, at the
offices of such Paying Agents ("Paying Agents") outside the United
States as the Issuer may designate from time to time, at the option of
the holder, by check or by transfer to an account maintained by the
payee with a bank located outside the United States; provided,
however, that the written certification described above under "-Form,
Exchange, Registration and Transfer" has been delivered prior to the
first actual payment of interest. Unless otherwise indicated in the
applicable Prospectus Supplement, payment of interest on Bearer Debt
Securities on any Interest Payment Date will be made only against
surrender to the Paying Agent of the coupon relating to such Interest
Payment Date. No payment with respect to any Bearer Debt Security
will be made at any office or agency of the Issuer in the United
States or by check mailed to any address in the United States or by
transfer to any account maintained with a bank located in the United
States, nor shall any payments be made in respect of Bearer Debt
Securities upon presentation to the Issuer or its designated Paying
Agents within the United States. Notwithstanding the foregoing,
payments of principal of (and any premium) and interest on Bearer Debt
Securities denominated and payable in U.S. dollars will be made at the
office of the Issuer's Paying Agent in the United States, if (but only
if) payment of the full amount thereof in U.S. dollars at all offices
or agencies outside the United States is illegal or effectively
precluded by exchange controls or other similar restrictions.
Unless otherwise indicated in the 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
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the office of such Paying Agent or Paying Agents as the Issuer may
designate from time to time, except that at the option of the Issuer
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.
Unless otherwise indicated in the applicable Prospectus
Supplement, the Corporate Trust Office of the Trustee will be
designated as a Paying Agent for the Trustee for payments with respect
to Debt Securities which are issuable solely as Registered Debt
Securities, and the Issuer will maintain a Paying Agent outside the
United States for payments with respect to Debt Securities (subject to
limitations described above in the case of Bearer Debt Securities)
which are issued solely as Bearer Debt Securities, or as both
Registered Debt Securities and Bearer Debt Securities. Any Paying
Agents outside the United States and any other Paying Agents in the
United States initially designated by the Issuer for the Debt
Securities will be named in an applicable Prospectus Supplement. The
Issuer 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, if Debt Securities
of a series are issued solely as Registered Debt Securities, the
Issuer will be required to maintain a Paying Agent in each Place of
Payment for such series and, if Debt Securities of a series are issued
as Bearer Securities, the Issuer will be required to maintain (i) a
Paying Agent in the United States for principal payments with respect
to any Registered Debt Securities of the series (and for payments with
respect to Bearer Debt Securities of the series in the circumstances
described above, but not otherwise), and (ii) a Paying Agent in a
Place of Payment located outside the United States where Securities of
such series and any coupons appertaining thereto may be presented and
surrendered for payment.
All monies paid by the Issuer 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 two years after such principal, premium
or interest shall have become due and payable will (subject to
applicable escheat laws) be repaid to the Issuer and the holder of
such Debt Security or any coupon will thereafter look only to the
Issuer for payment thereof.
TEMPORARY GLOBAL SECURITIES
If so specified in the applicable Prospectus Supplement, all or
any portion of the Debt Securities of a series which are issuable as
Bearer Debt Securities will initially be represented by one or more
temporary global Debt Securities, without interest coupons, to be
deposited with a common depository in London for the Euroclear System
("Euroclear") and CEDEL S.A. ("CEDEL") for credit to the designated
accounts. On and after the date determined as provided in any such
temporary global Debt Security and described in the applicable
Prospectus Supplement, each such temporary global Debt Security will
be exchangeable for definitive Bearer Debt Securities, definitive
Registered Debt Securities or all or a portion of a permanent global
security, or any combination thereof, as specified in the applicable
Prospectus Supplement, but, unless otherwise specified in the
applicable Prospectus Supplement, only upon written certification in
the form and to the effect described under "-Form, Exchange,
Registration and Transfer." No Bearer Debt Security delivered in
exchange for a portion of a temporary global Debt Security will be
mailed or otherwise delivered to any location in the United States in
connection with such exchange.
Unless otherwise specified in the applicable Prospectus
Supplement, interest in respect of any portion of a temporary global
Debt Security payable in respect of an Interest Payment Date occurring
prior to the issuance of definitive Debt Securities or a permanent
global Subordinated Debt Security will be paid to each of Euroclear
and CEDEL with respect to the portion of the temporary global Debt
Security held for its account. Each of Euroclear and CEDEL will
undertake in such circumstances to credit such interest received by it
in respect of a temporary global Debt Security to the respective
accounts for which it holds such temporary global Debt Security only
upon receipt in each case of written certification in the form and to
the effect described above under "-Form, Exchange, Registration and
Transfer" as of the relevant Interest Payment Date regarding the
portion of such temporary global Debt Security on which interest is to
be so credited.
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PERMANENT GLOBAL SECURITIES
If any Debt Securities of a series are issuable in permanent
global form, the applicable Prospectus Supplement will describe the
circumstances, if any, under which beneficial owners of interests in
any such permanent global Debt Securities may exchange such interests
for Debt Securities of such series and of like tenor and principal
amount in any authorized form and denomination. No Bearer Debt
Security delivered in exchange for a portion of a permanent global
Debt Security shall be mailed or otherwise delivered to any location
in the United States in connection with such exchange.
BOOK-ENTRY DEBT SECURITIES
The Debt Securities of a series may be issued in whole or in part
in the form of one or more Global Securities that will be deposited
with, or on behalf of, a Depositary ("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 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 of such Depositary or by a nominee of such Depositary to such
Depositary or another nominee of such Depositary or by such Depositary
or any nominee to a successor Depositary or a nominee of such
successor Depositary and except in the circumstances described in the
applicable Prospectus Supplement. (Sections 2.5 and 3.5)
The specific terms of the depositary arrangement with respect to
any portion of a series of Debt Securities to be represented by a
Global Security will be described in the applicable Prospectus
Supplement. The Issuer expects that the following provisions will
apply to depositary arrangements.
Unless otherwise specified in the applicable Prospectus
Supplement, Debt Securities which are to be represented by a Global
Security to be deposited with or on behalf of a Depositary will be
represented by a Global Security registered in the name of such
Depositary or its nominee. Upon the issuance of such 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 that have accounts with such
Depositary or its nominee ("participants"). The accounts to be
credited will be designated by the underwriters or agents of such Debt
Securities or by the Company, if such Debt Securities are offered and
sold directly by the Issuer. Ownership of beneficial interest in such
Global Security will be limited to participants or Persons that may
hold interests through participants. Ownership of beneficial
interests by participants in such Global Security will be shown on,
and the transfer of that ownership interest will be effected only
through, records maintained by the Depositary or its nominee for such
Global Security. Ownership of beneficial interests in such Global
Security by Persons that hold through participants will be shown on,
and the transfer of that ownership interest within such participant
will be effected only through, records maintained by such participant.
The laws of some jurisdictions require that certain purchasers of
securities take physical delivery of such securities in certificated
form. The foregoing limitations and such laws may impair the ability
to transfer beneficial interests in such Global Securities.
So long as the 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 Securities represented by such Global Security for all
purposes under the applicable Indenture. Unless otherwise specified
in the applicable Prospectus Supplement, owners of beneficial
interests in such Global Security will not be entitled to have Debt
Securities of the series represented by such Global Security
registered in their names, will not receive or be entitled to receive
physical delivery of Debt Securities of such series in certificated
form and will not be considered the Holders thereof for any purposes
under the applicable Indenture. (Sections 2.4 and 3.5) 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 its interest, to exercise any rights of a Holder
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under the applicable Indenture. The Issuer understands that under
existing industry practices, if the Issuer requests any action of
Holders or an owner of a beneficial interest in such Global Security
desires to give any notice or take any action a Holder is entitled to
give or take under an Indenture, the Depositary would authorize the
participants to give such notice or take such action, and participants
would authorize beneficial owners owning through such participants to
give such notice or take such action or would otherwise act upon the
instructions of beneficial owners owning through them.
Principal of and any premium and interest on a Global Security
will be payable in the manner described in the applicable Prospectus
Supplement.
LIMITATIONS ON ISSUANCE OF BEARER DEBT SECURITIES
In compliance with United States Federal tax laws and
regulations, Bearer Debt Securities (including securities in permanent
global form that are either Bearer Debt Securities or exchangeable for
Bearer Debt Securities) will not be offered or sold during the
restricted period (as defined in United States Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(7)) (generally, the first 40 days after
the closing date, and, with respect to unsold allotments, until sold)
within the United States or to United States persons (each as defined
below) other than to an office located outside the United States of a
United States financial institution (as defined in
Section 1.165-12(c)(1)(v) of the United States Treasury Regulations),
purchasing for its own account or for resale or for the account of
certain customers, that provides a certificate stating that it agrees
to comply with the requirements of Section 165(j)(3)(A), (B) or (C) of
the Code and the United States Treasury Regulations thereunder, or to
certain other persons described in
Section 1.163-5(c)(2)(i)(D)(1)(iii)(B) of the United States Treasury
Regulations. Moreover, such Bearer Debt Securities will not be
delivered in connection with their sale during the restricted period
within the United States. Any underwriters and dealers participating
in the offering of Bearer Debt Securities must covenant that they will
not offer or sell during the restricted period any Bearer Debt
Securities within the United States or to United States persons (other
than the persons described above) or deliver in connection with the
sale of Bearer Debt Securities during the restricted period any Bearer
Debt Securities within the United States and that they have in effect
procedures reasonably designed to ensure that their employees and
agents who are directly engaged in selling the Bearer Debt Securities
are aware of the restrictions described above. No Bearer Debt
Security (other than a temporary global Bearer Debt Security) will be
delivered in connection with its original issuance nor will interest
be paid on any Bearer Debt Security until receipt by the Issuer of the
written certification described above under "-Form, Exchange,
Registration and Transfer." Each Bearer Debt Security, other than a
temporary global Bearer Debt Security, will bear a legend to the
following effect: "Any United States person who holds this obligation
will be subject to limitations under the United States Federal income
tax laws, including the limitations provided in Sections 165(j) and
1287(a) of the Internal Revenue Code."
As used herein, "United States person" means any citizen or
resident of the United States, any corporation, partnership or other
entity created or organized in or under the laws of the United States
and any estate or trust the income of which is subject to United
States Federal income taxation regardless of its source, and "United
States" means the United States of America (including the states and
the District of Columbia) and its possessions.
CERTAIN COVENANTS OF THE COMPANY
If so indicated in the applicable Prospectus Supplement with
respect to a particular series of Debt Securities, the Company will be
subject to either or both of the following covenants.
Restrictions on Secured Debt.
If the Company or any Restricted Subsidiary shall incur, issue,
assume, or guarantee any loans, whether or not evidenced by any
evidence of indebtedness, for money borrowed ("Debt") secured by a
mortgage, pledge, or lien ("Mortgage") on any Principal Property of
the Company or any Restricted Subsidiary, or on any share of stock or
Debt of any Restricted Subsidiary, the Company will secure or cause
such
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Restricted Subsidiary to secure any Debt Securities to which this
covenant is applicable equally and ratably with (or, at the Company's
option, prior to) such secured Debt, unless the aggregate amount of
all such secured Debt, together with all Attributable Debt of the
Company and its Restricted Subsidiaries with respect to sale and
leaseback transactions involving Principal Properties (with the
exception of such transactions which are excluded as described in
"Restrictions on Sales and Leasebacks" below), would not exceed 10
percent of Consolidated Net Tangible Assets.
The above restriction does not apply to, and there will be
excluded from secured Debt in any computation under such restriction,
Debt secured by (i) Mortgages on property of, or on any shares of
stock of or Debt of, any corporation existing at the dates of the
respective Indentures or at the time such corporation becomes a
Restricted Subsidiary; (ii) Mortgages in favor of the Company or a
Restricted Subsidiary; (iii) Mortgages in favor of governmental bodies
to secure progress, advance or certain other payments; (iv) Mortgages
on property, assets, shares of stock or Debt existing at the time of
acquisition thereof (including acquisition through merger or
consolidation), and purchase money and construction Mortgages which
are entered into within 180 days after the acquisition or
construction; (v) Mortgages securing industrial revenue or pollution
control bonds; (vi) Mortgages created in connection with a project
financed with, and created to secure, a Nonrecourse Obligation; and
(vii) any extension, renewal, or refunding of any Mortgage referred to
in the foregoing clauses (i) through (vi) inclusive. (Section 10.8).
In addition, the above restriction does not apply to, and there will
be excluded from secured Debt in any corporation under such
restriction, the sale or other transfer of the following:
(i) minerals in place for a period of time until, or in an amount such
that, the purchaser will realize therefrom a specified amount of money
(however determined) or a specified amount of such minerals, or
(ii) any other interest in property of the character commonly referred
to as a "production payment."
Restrictions on Sales and Leasebacks.
Neither the Company nor any Restricted Subsidiary may enter into
any sale and leaseback transaction involving any Principal Property,
unless the aggregate amount of all Attributable Debt of the Company
and its Restricted Subsidiaries with respect to all such transactions
plus all secured Debt (with the exception of secured Debt which is
excluded as described in "Restrictions on Secured Debt" above) would
not exceed 10 percent of Consolidated Net Tangible Assets.
This restriction does not apply to, and there will be excluded
from Attributable Debt in any computation under such restriction, any
sale and leaseback transaction if (i) the lease is for a period,
including renewal rights, not in excess of three years; (ii) the sale
or transfer of the Principal Property is made within 180 days after
its acquisition or construction; (iii) the lease secures or relates to
industrial revenue or pollution control bonds; (iv) the transaction is
between the Company and a Restricted Subsidiary or between Restricted
Subsidiaries; (v) the lease payment obligation is created in
connection with a project financed with, and such obligation
constitutes, a Nonrecourse Obligation; or (vi) the Company or such
Restricted Subsidiary, within 180 days after the sale is completed,
applies to the retirement of Funded Debt of the Company or a
Restricted Subsidiary, or to the purchase of other property which will
constitute Principal Property of a value at least equal to the value
of the Principal Property leased, an amount not less than the greater
of (a) the net proceeds of the sale of the Principal Property leased
or (b) the fair market value of the Principal Property leased. The
amount to be applied to the retirement of Funded Debt shall be reduced
by (x) the principal amount of any debentures or notes (including the
Debt Securities) of the Company or a Restricted Subsidiary surrendered
within 180 days after such sale to the applicable trustee for
retirement and cancellation and (y) the principal amount of Funded
Debt, other than items referred to in the preceding clause (x),
voluntarily retired by the Company or a Restricted Subsidiary within
180 days after such sale. (Section 10.9)
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Certain Definitions Applicable to Covenants.
"Attributable Debt" is defined to mean the total net amount of
rent required to be paid during the remaining primary term of any
particular lease under which any person is at the time liable,
discounted at the rate of 10 1/8% per annum. (Section 1.1)
"Consolidated Net Tangible Assets" is defined to mean the
aggregate amount of assets (less applicable reserves and other
properly deductible items) after deducting (1) all liabilities, other
than deferred income taxes, liabilities resulting from any charge in
connection with the adoption of SFAS 106, and Funded Debt, and (2) all
goodwill, trade names, trademarks, patents, organization expenses, and
other like intangibles of the Company and its consolidated
subsidiaries. (Section 1.1)
"Funded Debt" is defined as (i) all indebtedness for money
borrowed having a maturity of more than 12 months from the date as of
which the determination is made or having a maturity of 12 months or
less but by its terms being renewable or extendable beyond 12 months
from such date at the option of the borrower and (ii) rental
obligations payable more than 12 months from such date under leases
which are capitalized in accordance with generally accepted accounting
principles. (Section 1.1)
"Nonrecourse Obligation" is defined to mean indebtedness or lease
payment obligations substantially related to (i) the acquisition of
assets not owned as of December 31, 1992 by the Company or any of its
Restricted Subsidiaries or (ii) the financing of a project involving
the development of properties of the Company or any of its Restricted
Subsidiaries, as to which the obligee with respect to such
indebtedness or obligation has no recourse to the general corporate
funds or the assets, in general, of the Company or any of its
Restricted Subsidiaries. (Section 10.8)
"Principal Property" is defined to mean any mine, mill,
converting plant, manufacturing plant, or other facility owned by the
Company or any Restricted Subsidiary of the Company which is located
within the present 50 states of the United States and the gross book
value of which (without deduction of any depreciation reserves) on the
date as of which the determination is being made exceeds 2.5 percent
of Consolidated Net Tangible Assets, other than properties or any
portion of a particular property which in the opinion of the Board of
Directors is not of material importance to the Company's business.
(Section 1.1)
"Restricted Subsidiary" is defined to mean a Subsidiary of the
Company substantially all the property of which is located, or
substantially all of the business of which is carried on, within the
present 50 states of the United States and which owns a Principal
Property, excluding however a Subsidiary of the Company which is
primarily engaged in the development and sale or financing of real
property. (Section 1.1)
"Subsidiary" of the Company is defined to mean a corporation more
than 50 percent of the voting stock of which is, directly or
indirectly, owned by the Company, one or more Subsidiaries of the
Company, or the Company and one or more Subsidiaries. (Section 1.1)
EVENTS OF DEFAULT
The following are Events of Default under the Indentures with
respect to Debt Securities of any series: (a) failure to pay principal
of or premium, if any, on any Debt Security of that series when due;
(b) failure to pay any interest on any Debt Security of that series
when due, continued for 30 days; (c) failure to make any sinking fund
payment, when due, in respect of any Debt Security of that series; (d)
failure to perform any other covenant of the Company in the applicable
Indenture (other than a covenant included in such Indenture solely for
the benefit of a series of Debt Securities other than that series),
continued for 60 days after written notice as provided in the
respective Indentures; (e) failure to pay at the final maturity
thereof the principal of, or acceleration of, any indebtedness for
money borrowed by the Issuer in excess of $20 million, if such
indebtedness is not discharged, or such acceleration is not annulled,
as provided in the respective Indentures; (f) certain events of
bankruptcy, insolvency or reorganization; and (g) any other Event of
Default provided with respect to Debt Securities of that series.
(Section 5.1)
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If an Event of Default with respect to Outstanding Debt
Securities of any series shall occur and be continuing, either the
Trustee or the Holders of at least 25% in principal amount of the
Outstanding Debt Securities of that series by notice as provided in
the respective Indentures may declare the principal amount (or, if the
Debt Securities of that series are Original Issue Discount Securities,
such portion of the principal amount as may be specified in the terms
of that series) of all Debt Securities of that series to be due and
payable immediately. However, at any time after a declaration of
acceleration with respect to Debt Securities of any series has been
made, but before a judgment or decree based on such acceleration has
been obtained, the Holders of a majority in principal amount of the
Outstanding Debt Securities of that series may, under certain
circumstances, rescind and annul such acceleration. (Section 5.2)
For information as to waiver or defaults, see "Modification and
Waiver" below.
The Indentures provide that, subject to the duty of the
respective Trustees thereunder during an Event of Default to act with
the required standard of care, such Trustee will be under no
obligation to exercise any of its rights or powers under the
respective Indentures at the request or direction of any of the
Holders, unless such Holders shall have offered to such Trustee
reasonable security or indemnity. (Sections 6.1 and 6.3) Subject to
certain provisions, including those requiring security or
indemnification of the Trustees, the Holders of a majority in
principal amount of the Outstanding Debt Securities of any series will
have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the applicable Trustee, or
exercising any trust or power conferred on such Trustee, with respect
to the Debt Securities of that series. (Section 5.12)
No Holder of a Debt Security of any series will have any right to
institute any proceeding with respect to the applicable Indenture or
for any remedy thereunder, unless such Holder shall have previously
given to the applicable Trustee written notice of a continuing Event
of Default (as defined) and unless also the Holders of at least 25
percent in aggregate principal amount of the Outstanding Debt
Securities of the same series shall have made written request, and
offered reasonable indemnity, to the Trustee to institute such
proceeding as trustee, and the Trustee shall not have received from
the Holders of a majority in aggregate principal amount of the
Outstanding Debt Securities of the same series a direction
inconsistent with such request and shall have failed to institute such
proceeding within 60 days. (Section 5.7) However, such limitations
do not apply to a suit instituted by a Holder of a Debt Security for
enforcement of payment of the principal of and interest on such Debt
Security on or after the respective due dates expressed in such Debt
Security. (Section 5.8)
The Issuer will be required to furnish to the Trustees annually a
statement as to the performance by the Issuer of its obligations under
the respective Indentures and as to any default in such performance.
(Section 10.4)
MODIFICATION AND WAIVER
Modifications and amendments of the respective Indentures may be
made by the Issuer and the Trustee with the consent of the Holders of
not less than a majority in aggregate principal amount of the
Outstanding Debt Securities of each series affected thereby; provided,
however, that no such modification or amendment may, without the
consent of the Holder of each Outstanding Debt Security affected
thereby: (a) change the Stated Maturity of the principal of, or any
installment of principal of, or interest on, any Debt Security; (b)
reduce the principal amount of, the rate of interest on, or the
premium, if any, payable upon the redemption of, any Debt Security;
(c) reduce the amount of principal of an Original Issue Discount
Security payable upon acceleration of the Maturity thereof; (d) change
the place or currency of payment of principal of, or premium, if any,
or interest on any Debt Security; (e) impair the right to institute
suit for the enforcement of any payment on or with respect to any Debt
Security on or after the Stated Maturity or Redemption Date thereof;
or (f) reduce the percentage in principal amount of Outstanding Debt
Securities of any series, the consent of the Holders of which is
required for modification or amendment of the applicable Indenture or
for waiver of compliance with certain provisions of the applicable
Indenture or for waiver of certain defaults. (Section 9.2)
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The Holders of at least a majority in aggregate principal amount
of the Outstanding Debt Securities of any series may on behalf of the
Holders of all Debt Securities of that series waive, insofar as that
series is concerned, compliance by the Company with certain covenants
of the applicable Indenture. (Section 10.10) The Holders of not less
than a majority in principal amount of the Outstanding Debt Securities
of any series may, on behalf of the Holders of all Debt Securities of
that series, waive any past default under the applicable Indenture
with respect to that series, except a default in the payment of the
principal of, or premium, if any, or interest on, any Debt Security of
that series or in respect of a provision which under the applicable
Indenture cannot be modified or amended without the consent of the
Holder of each Outstanding Debt Security of that series affected.
(Section 5.13)
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Issuer, without the consent of any Holders of Outstanding
Debt Securities, may consolidate with or merge into, or transfer or
lease its assets substantially as an entirety to, any Person, and any
other Person may consolidate with or merge into, or transfer or lease
its assets substantially as an entirety to, the Issuer, provided (a)
that the Person (if other than the Issuer) formed by such
consolidation or into which the Issuer is merged or which acquires or
leases the assets of the Company substantially as an entirety is a
Person organized and existing under the laws of any United States
jurisdiction and assumes the Issuer's obligations on the Debt
Securities and under the respective Indentures, (b) that after giving
effect to such 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 happened and be continuing, and (c) that certain
other conditions are met. (Article Eight)
DEFEASANCE
If so indicated in the applicable Prospectus Supplement with
respect to the Debt Securities of a series, the Issuer, at its option,
(i) will be discharged from any and all obligations in respect of the
Debt Securities of such series (except for certain obligations to
register the transfer or exchange of Debt Securities of such series,
to replace destroyed, stolen, lost or mutilated Debt Securities of
such series, and to maintain an office or agency in respect of the
Debt Securities and hold moneys for payment in trust) or (ii) will be
released from its obligations to comply with the covenants that are
specified under "Certain Covenants of the Company" above with respect
to the Debt Securities of such series and the occurrence of an event
described in clause (d) under "Events of Default" above with respect
to any defeased covenant and clauses (e) and (g) of the "Events of
Default" above shall no longer be an Event of Default if, in either
case, the Issuer irrevocably deposits with the Trustee, in trust,
money or U.S. Government Obligations that through the payment of
interest thereon and principal thereof in accordance with their terms
will provide money in an amount sufficient to pay all the principal of
(and premium, if any) and any interest on the Debt Securities of such
series on the dates such payments are due (which may include one or
more redemption dates designated by the Issuer) in accordance with the
terms of such Debt Securities. Such a trust may only be established
if, among other things, (a) no Event of Default or event which with
the giving of notice or lapse of time, or both, would become an Event
of Default under the applicable Indenture shall have occurred and be
continuing on the date of such deposit, (b) no Event of Default
described under clause (f) under "Events of Default" above or event
which with the giving of notice or lapse of time, or both, would
become an Event of Default described under such clause (f) shall have
occurred and be continuing at any time during the period ending on the
91st day following such date of deposit, and (c) the Issuer shall have
delivered an Opinion of Counsel to the effect that the Holders of the
Debt Securities will not recognize gain or loss for United States
Federal income tax purposes as a result of such deposit or defeasance
and will be subject to United States Federal income tax in the same
manner as if such defeasance had not occurred. In the event the
Issuer omits to comply with its remaining obligations under the
applicable Indenture after a defeasance of such Indenture with respect
to the Debt Securities of any series as described under clause (ii)
above and the Debt Securities of such series are declared due and
payable because of the occurrence of any undefeased Event of Default,
the amount of money and U.S. Government Obligations on deposit with
the Trustee may be insufficient to pay amounts due on the Debt
Securities of such series at the time of the acceleration resulting
from such Event of Default. However, the Company will remain liable
in respect of such payments. (Article Thirteen)
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Notwithstanding the description set forth under "Subordination of
Senior Subordinated Securities, Subordinated Securities and
Guarantees" above, in the event that the Company deposits money or
U.S. Government Obligations in compliance with such Senior
Subordinated Indenture or the Indenture in order to defease all or
certain of its obligations with respect to any Senior Subordinated
Securities or Subordinated Securities, the monies or U.S. Government
Obligations so deposited will not be subject to the subordination
provisions of such Indenture and the indebtedness evidenced by such
Securities will not be subordinated in right of payment to the holders
of Senior Indebtedness to the extent of the monies or U.S. Government
Obligations so deposited.
NOTICES
Except as otherwise provided in the Indenture, notices to holders
of Bearer Debt Securities will be given by publication at least twice
in a daily newspaper in the City of New York and London or other
capital city in Western Europe and in such other city or cities as may
be specified in such Securities. Notices to holders of Registered
Debt Securities will be given by mail to the addresses of such holders
as they appear in the Security Register.
GOVERNING LAW
The Indentures and the Debt Securities will be governed by, and
construed in accordance with, the laws of the State of New York.
(Section 1.12)
REGARDING THE TRUSTEE
The Indentures contain certain limitations on the right of the
Trustee, should it become a creditor of the Issuer, to obtain payment
of claims in certain cases, or to realize for its own account on
certain property received in respect of any such claim as security or
otherwise. (Section 6.13) The Trustee will be permitted to engage in
certain other transactions; however, if it acquires any conflicting
interest and there is a default under the Debt Securities, it must
eliminate such conflict or resign. (Section 6.8)
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DESCRIPTION OF PREFERRED STOCK
The following is a description of certain general terms and
provisions of the Preferred Stock. The particular terms of any series
of Preferred Stock will be described in the applicable Prospectus
Supplement. If so indicated in a Prospectus Supplement, the terms of
any such series may differ from the terms set forth below. Certain
provisions applicable to the Preferred Stock are set forth below in
"Description of Common Stock."
The summary of terms of the Company's preferred stock (including
the Preferred Stock) contained in this Prospectus does not purport to
be complete and is subject to, and qualified in its entirety by, the
provisions of the Company's Certificate of Incorporation and the
certificate of designations relating to each series of the Preferred
Stock (the "Certificate of Designations"), which will be filed as an
exhibit to or incorporated by reference in the Registration Statement
of which this Prospectus is a part at or prior to the time of issuance
of such series of the Preferred Stock.
The Company's Certificate of Incorporation authorizes the
issuance of 20,000,000 shares of preferred stock, par value of $1.00
per share. 4,664,863 shares of Series A Convertible Preferred Stock
are currently outstanding, and the Company has reserved for issuance
500,000 shares of its Series A Junior Participating Preferred Stock
issuable pursuant to the Rights Plan. A description of the Series A
Convertible Preferred Stock and the Series A Junior Participating
Preferred Stock has been incorporated by reference herein. The
Company's preferred stock may be issued from time to time in one or
more series, without stockholder approval. Subject to limitations
prescribed by law, the Board of Directors is authorized to determine
the voting powers (if any), designation, preferences and relative,
participating, optional or other special rights, and qualifications,
limitations or restrictions thereof, for each series of preferred
stock that may be issued, and to fix the number of shares of each such
series. Thus, the Board of Directors, without stockholder approval,
could authorize the issuance of preferred stock with voting,
conversion and other rights that could adversely affect the voting
power and other rights of holders of Common Stock or other series of
preferred stock or that could have the effect of delaying, deferring
or preventing a change in control of the Company. See "Description of
Common Stock" herein.
The Preferred Stock shall have the dividend, liquidation,
redemption and voting rights set forth below unless otherwise provided
in a Prospectus Supplement relating to a particular series of the
Preferred Stock. The applicable Prospectus Supplement will describe
the following terms of the series of Preferred Stock in respect of
which this Prospectus is being delivered: (1) the designation and
stated value per share of such Preferred Stock and the number of
shares offered; (2) the amount of liquidation preference per share;
(3) the initial public offering price at which such Preferred Stock
will be issued; (4) the dividend rate (or method of calculation), the
dates on which dividends shall be payable and the dates from which
dividends shall commence to cumulate, if any; (5) any redemption or
sinking fund provisions; (6) any conversion or exchange rights; (7)
whether the Company has elected to offer Depositary Shares as
described below under "Description of Depositary Shares"; and (8) any
additional voting, dividend, liquidation, redemption, sinking fund and
other rights, preferences, privileges, limitations and restrictions.
GENERAL
The Preferred Stock offered hereby will be issued in one or more
series. The holders of Preferred Stock will have no preemptive
rights. Preferred Stock, upon issuance against full payment of the
purchase price therefor, will be fully paid and nonassessable.
Neither the par value nor the liquidation preference is indicative of
the price at which the Preferred Stock will actually trade on or after
the date of issuance. The applicable Prospectus Supplement will
contain a description of certain United States Federal income tax
consequences relating to the purchase and ownership of the series of
Preferred Stock offered by such Prospectus Supplement.
As described under "Description of Depositary Shares," the
Company may, at its option, elect to offer depositary shares
("Depositary Shares") evidenced by depositary receipts ("Depositary
Receipts"), each representing a fractional interest (to be specified
in the Prospectus Supplement relating to the particular series of
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the Preferred Stock) in a share of the particular series of the
Preferred Stock issued and deposited with a Depositary (as defined
below).
RANK
The Preferred Stock shall, with respect to dividend rights and
rights on liquidation, winding up and dissolution of the Company, rank
prior to the Company's Common Stock and to all other classes and
series of equity securities of the Company now or hereafter
authorized, issued or outstanding (the Common Stock and such other
classes and series of equity securities collectively may be referred
to herein as the "Junior Stock"), other than any classes or series of
equity securities of the Company ranking on a parity with (the "Parity
Stock") or senior to (the "Senior Stock") the Preferred Stock as to
dividend rights and rights upon liquidation, winding up or dissolution
of the Company. The Preferred Stock shall be junior to all
outstanding debt of the Company. The Preferred Stock shall be subject
to creation of Senior Stock, Parity Stock and Junior Stock to the
extent not expressly prohibited by the Company's Certificate of
Incorporation.
DIVIDENDS
Holders of shares of Preferred Stock shall be entitled to
receive, when, as and if declared by the Board of Directors out of
funds of the Company legally available for payment, cash dividends,
payable at such dates and at such rates per share per annum as set
forth in the applicable Prospectus Supplement. Such rate may be fixed
or variable or both. Each declared dividend shall be payable to
holders of record as they appear at the close of business on the stock
books of the Company (or, if applicable, on the records of the
Depositary (as hereinafter defined) referred to below under
"Description of Depositary Shares") on such record dates, not more
than 60 calendar days preceding the payment dates therefor, as are
determined by the Board of Directors (each of such dates, a "Record
Date").
Such dividends may be cumulative or noncumulative, as provided in
the Prospectus Supplement. If dividends on a series of Preferred
Stock are noncumulative and if the Board of Directors fails to declare
a dividend in respect of a dividend period with respect to such
series, then holders of such Preferred Stock will have no right to
receive a dividend in respect of such dividend period, and the Company
will have no obligation to pay the dividend for such period, whether
or not dividends are declared payable on any future Dividend Payment
Dates. Dividends on the shares of each series of Preferred Stock for
which dividends are cumulative will accrue from the date on which the
Company initially issues shares of such series.
No full dividends shall be declared or paid or set apart for
payment on preferred stock of the Company of any series ranking, as to
dividends, on a parity with or junior to the series of Preferred Stock
offered by the Prospectus Supplement attached hereto for any period
unless full dividends for the immediately preceding dividend period on
such Preferred Stock (including any accumulation in respect of unpaid
dividends for prior dividend periods, if dividends on such Preferred
Stock are cumulative) have been or contemporaneously are declared and
paid or declared and a sum sufficient for the payment thereof is set
apart for such payment. When dividends are not so paid in full (or a
sum sufficient for such full payment is not so set apart) upon such
Preferred Stock and any other preferred stock of the Company ranking
on a parity as to dividends with the Preferred Stock, dividends upon
shares of such Preferred Stock and dividends on such other preferred
stock shall be declared pro rata so that the amount of dividends
declared per share on such Preferred Stock and such other preferred
stock shall in all cases bear to each other the same ratio that
accrued dividends for the then-current dividend period per share on
the shares of such Preferred Stock (including any accumulation in
respect of unpaid dividends for prior dividend periods, if dividends
on such Preferred Stock are cumulative) and accrued dividends,
including required or permitted accumulations, if any, on shares of
such other preferred stock, bear to each other. Unless full dividends
on the series of Preferred Stock offered by the Prospectus Supplement
attached hereto have been declared and paid or set apart for payment
for the immediately preceding dividend period (including any
accumulation in respect of unpaid dividends for prior dividend
periods, if dividends on such Preferred Stock are cumulative) (a) no
cash dividend or distribution (other than in shares of Junior Stock)
may be declared, set aside or paid on the Junior Stock, (b) the
Company may not repurchase, redeem or otherwise acquire any shares of
its Junior Stock (except by conversion into or exchange for Junior
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Stock) and (c) the Company may not, directly or indirectly,
repurchase, redeem or otherwise acquire any shares of Preferred Stock
or Parity Stock otherwise than pursuant to certain pro rata offers to
purchase or a concurrent redemption of all, or a pro rata portion, of
the outstanding shares of such Preferred Stock and Parity Stock
(except by conversion into or exchange for Junior Stock). The Company
does not currently have outstanding any Parity Stock.
CONVERTIBILITY
The terms, if any, on which shares of Preferred Stock of any
series may be exchanged for or converted (mandatorily or otherwise)
into shares of Common Stock of the Company or another corporation or
another series of Preferred Stock or other securities of the Company
or another corporation will be set forth in the Prospectus Supplement
relating thereto. See "Description of Common Stock."
REDEMPTION
The terms, if any, on which shares of Preferred Stock of any
series may be redeemed will be set forth in the related Prospectus
Supplement.
LIQUIDATION
Unless otherwise specified in the applicable Prospectus
Supplement, in the event of a voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Company, the holders
of a series of Preferred Stock will be entitled, subject to the rights
of creditors, but before any distribution or payment to the holders of
Common Stock or any other security ranking junior to the Preferred
Stock on liquidation, dissolution or winding up of the Company, to
receive an amount per share as set forth in the related Prospectus
Supplement plus accrued and unpaid dividends for the then-current
dividend period (including any accumulation in respect of unpaid
dividends for prior dividend periods, if dividends on such series of
Preferred Stock are cumulative). If the amounts available for
distribution with respect to the Preferred Stock and all other
outstanding stock of the Company ranking on a parity with the
Preferred Stock upon liquidation are not sufficient to satisfy the
full liquidation rights of all the outstanding Preferred Stock and
stock ranking on a parity therewith, then the holders of each series
of such stock will share ratably in any such distribution of assets in
proportion to the full respective preferential amount (which in the
case of preferred stock may include accumulated dividends) to which
they are entitled. After payment of the full amount of the
liquidation preference, the holders of shares of Preferred Stock will
not be entitled to any further participation in any distribution of
assets by the Company.
VOTING
The Preferred Stock of a series will not be entitled to vote,
except as provided below or in the applicable Prospectus Supplement
and as required by applicable law. Unless otherwise specified in the
related Prospectus Supplement, at any time dividends in an amount
equal to six quarterly dividend payments on the Preferred Stock shall
have accrued and be unpaid, holders of the Preferred Stock shall have
the right to a separate class vote (together with the holders of
shares of any Parity Stock upon which like voting rights have been
conferred and are exercisable, "Voting Parity Stock") to elect two
members of the Board of Directors at the next annual meeting of
stockholders and thereafter until dividends on the Preferred Stock
have been paid in full for four consecutive dividend periods,
including the last preceding dividend period. Additionally, without
the affirmative vote of the holders of two-thirds of the shares of
Preferred Stock then outstanding (voting separately as a class
together with any Voting Parity Stock), the Company may not, either
directly or indirectly or through merger or consolidation with any
other corporation, (i) approve the authorization, creation or
issuance, or an increase in the authorized or issued amount, of any
class or series of stock ranking prior to the shares of Preferred
Stock in rights and preferences or (ii) amend, alter or repeal its
Certificate of Incorporation or the Certificate of Designations so as
to materially and adversely change the specific terms of the Preferred
Stock. An amendment which increases the number of authorized shares
of or authorizes the creation or issuance of other classes or series
of preferred stock ranking junior to or on a parity with the Preferred
Stock with respect to the payment of dividends or distribution of
assets upon liquidation, dissolution or winding up, or
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substitutes the surviving entity in a merger, consolidation,
reorganization or other business combination for the Company, shall
not be considered to be such an adverse change.
As more fully described under "Description of Depositary Shares"
below, if the Company elects to issue Depositary Shares, each
representing a fraction of a share of a series of the Preferred Stock,
each such Depositary Share will, in effect, be entitled to such
fraction of a vote per Depositary Share.
NO OTHER RIGHTS
The shares of a series of Preferred Stock will not have any
preferences, voting powers or relative, participating, optional or
other special rights except as set forth above or in the related
Prospectus Supplement, the Certificate of Incorporation and in the
certificate of designations or as otherwise required by law.
TRANSFER AGENT AND REGISTRAR
The transfer agent for each series of Preferred Stock will be
described in the related Prospectus Supplement.
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DESCRIPTION OF DEPOSITARY SHARES
The description set forth below and in any Prospectus Supplement
of certain provisions of the Deposit Agreement (as defined below) and
of the Depositary Shares and Depositary Receipts does not purport to
be complete and is subject to and qualified in its entirety by
reference to the forms of Deposit Agreement and Depositary Receipts
relating to each series of the Preferred Stock which have been or will
be filed with the Commission at or prior to the time of the offering
of such series of the Preferred Stock.
GENERAL
The Company may, at its option, elect to offer fractional
interests in shares of Preferred Stock, rather than shares of
Preferred Stock. In the event such option is exercised, the Company
will provide for the issuance by a Depositary to the public of
receipts for Depositary Shares, each of which will represent a
fractional interest (to be set forth in the Prospectus Supplement
relating to a particular series of the Preferred Stock which will be
filed with the Commission at or prior to the time of the offering of
such series of the Preferred Stock as described below).
The shares of any series of the Preferred Stock underlying the
Depositary Shares will be deposited under a separate Deposit Agreement
(the "Deposit Agreement") between the Company and a bank or trust
company selected by the Company having its principal office in the
United States and having a combined capital and surplus of at least
$50,000,000 (the "Depositary"). The Prospectus Supplement relating to
a series of Depositary Shares will set forth the name and address of
the Depositary. Subject to the terms of the Deposit Agreement, each
owner of a Depositary Share will be entitled, in proportion to the
applicable fractional interest in a share of Preferred Stock
underlying such Depositary Shares, to all the rights and preferences
of the Preferred Stock underlying such Depositary Share (including
dividend, voting, redemption, conversion and liquidation rights).
The Depositary Shares will be evidenced by Depositary Receipts
issued pursuant to the Deposit Agreement.
Pending the preparation of definitive engraved Depositary
Receipts, the Depositary may, upon the written order of the Company,
issue temporary Depositary Receipts substantially identical to (and
entitling the holders thereof to all the rights pertaining to) the
definitive Depositary Receipts but not in definitive form. Definitive
Depositary Receipts will be prepared thereafter without unreasonable
delay, and temporary Depositary Receipts will be exchangeable for
definitive Depositary Receipts at the Company's expense.
Upon surrender of Depositary Receipts at the office of the
Depositary and upon payment of the charges provided in the Deposit
Agreement and subject to the terms thereof, a holder of Depositary
Shares is entitled to have the Depositary deliver to such holder the
whole shares of Preferred Stock underlying the Depositary Shares
evidenced by the surrendered Depositary Receipts.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or other cash
distributions received in respect of the Preferred Stock to the record
holders of Depositary Shares relating to such Preferred Stock in
proportion to the numbers of such Depositary Shares owned by such
holders on the relevant record date. The Depositary shall distribute
only such amount, however, as can be distributed without attributing
to any holder of Depositary Shares a fraction of one cent, and any
balance not so distributed shall be added to and treated as part of
the next sum received by the Depositary for distribution to record
holders of Depositary Shares.
In the event of a distribution other than in cash, the Depositary
will distribute property received by it to the record holders of
Depositary Shares entitled thereto, unless the Depositary determines
that it is not feasible
-23-<PAGE>
to make such distribution, in which case the Depositary may, with the
approval of the Company, sell such property and distribute the net
proceeds from such sale to such holders.
The Deposit Agreement will also contain provisions relating to
the manner in which any subscription or similar rights offered by the
Company to holders of the Preferred Stock shall be made available to
holders of Depositary Shares.
REDEMPTION OF DEPOSITARY SHARES
If a series of the Preferred Stock underlying the Depositary
Shares is subject to redemption, the Depositary Shares will be
redeemed from the proceeds received by the Depositary resulting from
the redemption, in whole or in part, of such series of the Preferred
Stock held by the Depositary. The Depositary shall mail notice of
redemption not less than 30 and not more than 60 days prior to the
date fixed for redemption to the record holders of the Depositary
Shares to be so redeemed at their respective addresses appearing in
the Depositary's books. The redemption price per Depositary Share
will be equal to the applicable fraction of the redemption price per
share payable with respect to such series of the Preferred Stock.
Whenever the Company redeems shares of Preferred Stock held by the
Depositary, the Depositary will redeem as of the same redemption date
the number of Depositary Shares relating to shares of Preferred Stock
so redeemed. If less than all of the Depositary Shares are to be
redeemed, the Depositary Shares to be redeemed will be selected by lot
or pro rata as may be determined by the Depositary.
After the date fixed for redemption, the Depositary Shares so
called for redemption will no longer be deemed to be outstanding and
all rights of the holders of the Depositary Shares will cease, except
the right to receive the moneys payable upon such redemption and any
money or other property to which the holders of such Depositary Shares
were entitled upon such redemption upon surrender to the Depositary of
the Depositary Receipts evidencing such Depositary Shares.
VOTING THE PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the
Preferred Stock are entitled to vote, the Depositary will mail the
information contained in such notice of meeting to the record holders
of the Depositary Shares relating to such Preferred Stock. Each
record holder of such Depositary Shares on the record date (which will
be the same date as the record date for the Preferred Stock) will be
entitled to instruct the Depositary as to the exercise of the voting
rights pertaining to the number of shares of Preferred Stock
underlying such holder's Depositary Shares. The Depositary will
endeavor, insofar as practicable, to vote the number of shares of
Preferred Stock underlying such Depositary Shares in accordance with
such instructions, and the Company will agree to take all action which
may be deemed necessary by the Depositary in order to enable the
Depositary to do so. The Depositary will abstain from voting shares
of Preferred Stock to the extent it does not receive specific
instructions from the holders of Depositary Shares relating to such
Preferred Stock.
AMENDMENT AND TERMINATION OF THE DEPOSITARY AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares
and any provision of the Deposit Agreement may at any time be amended
by agreement between the Company and the Depositary. However, any
amendment which materially and adversely alters the rights of the
existing holders of Depositary Shares will not be effective unless
such amendment has been approved by the record holders of at least a
majority of the Depositary Shares then outstanding. A Deposit
Agreement may be terminated by the Company or the Depositary only if
(i) all outstanding Depositary Shares relating thereto have been
redeemed or (ii) there has been a final distribution in respect of the
Preferred Stock of the relevant series in connection with any
liquidation, dissolution or winding up of the Company and such
distribution has been distributed to the holders of the related
Depositary Shares.
-24-<PAGE>
CHARGES OF DEPOSITARY
The Company will pay all transfer and other taxes and
governmental charges arising solely from the existence of the
depositary arrangements. The Company will pay charges of the
Depositary in connection with the initial deposit of the Preferred
Stock and any redemption of the Preferred Stock. Holders of
Depositary Shares will pay other transfer and other taxes and
governmental charges and such other charges as are expressly provided
in the Deposit Agreement to be for their accounts.
MISCELLANEOUS
The Depositary will forward to the holders of Depositary Shares
all reports and communications from the Company which are delivered to
the Depositary and which the Company is required to furnish to the
holders of the Preferred Stock.
Neither the Depositary nor the Company will be liable if it is
prevented or delayed by law or any circumstance beyond its control in
performing its obligations under the Deposit Agreement. The
obligations of the Company and the Depositary under the Deposit
Agreement will be limited to performance in good faith of their duties
thereunder and they will not be obligated to prosecute or defend any
legal proceeding in respect of any Depositary Shares or Preferred
Stock unless satisfactory indemnity is furnished. They may rely upon
written advice of counsel or accountants, or information provided by
persons presenting Preferred Stock for deposit, holders of Depositary
Shares or other persons believed to be competent and on documents
believed to be genuine.
RESIGNATION AND REMOVAL OF DEPOSITARY
The Depositary may resign at any time by delivering to the
Company notice of its election to do so, and the Company may at any
time remove the Depositary, any such resignation or removal to take
effect upon the appointment of a successor Depositary and its
acceptance of such appointment. Such successor Depositary must be
appointed within 60 days after delivery of the notice of resignation
or removal and must be a bank or trust company having its principal
office in the United States and having a combined capital and surplus
of at least $50,000,000.
-25-<PAGE>
DESCRIPTION OF COMMON STOCK
The Company's Certificate of Incorporation authorizes the
issuance of 150,000,000 shares of common stock, without par value
("Common Stock"). A description of the Company's Preferred Share
Purchase Rights, which are attached to and trade with the Common
Stock, is incorporated by reference herein.
The holders of Common Stock are entitled to receive dividends
when and as declared by the Board of Directors of the Company out of
funds legally available therefor, provided that if any shares of
preferred stock are at the time outstanding, the payment of dividends
on Common Stock or other distributions (including purchases of Common
Stock) may be subject to the declaration and payment of full
cumulative dividends, and the absence of arrearages in any mandatory
sinking fund, on outstanding shares of preferred stock.
The holders of Common Stock are entitled to one vote for each
share of all matters voted on by stockholders, including elections of
directors. The holders of Common Stock do not have any conversion,
redemption or preemptive rights. In the event of the dissolution,
liquidation or winding up of the Company, holders of Common Stock are
entitled to share ratably in any assets remaining after the
satisfaction in full of the prior rights of creditors, including
holders of the Company's indebtedness, and the aggregate liquidation
preference of any preferred stock then outstanding.
All outstanding shares of Common Stock are, and the shares
offered hereby, upon issuance, will be, fully paid and non-assessable.
Under the Certificate of Incorporation and By-Laws of the
Company, the Board of Directors is classified into three classes of
members with staggered terms. Action can be taken by stockholders
only at an annual or special meeting, action by written consent by
stockholders being prohibited. No business may be proposed by a
stockholder at the annual meeting of stockholders without giving
written notice to the Company at least 90 days prior to the
anniversary date of the previous annual meeting. No nominations for
director positions may be proposed by a stockholder at any annual or
special meeting of stockholders without giving written notice to the
Company at least 90 days before the anniversary date of the previous
annual meeting or within 10 days after notice of a special meeting is
mailed to the Company. A special meeting can be called by the Board
of Directors, the Chairman of the Board, the President or holders of
at least 50 percent of the shares entitled to vote at such meeting.
Directors can be removed only with cause by the vote of holders of at
least 75 percent of outstanding shares of Common Stock.
Certain "business combinations" (as defined) involving
"interested stockholders" (defined generally to be holders of 10
percent or more of Common Stock) require approval by vote of holders
of at least 75 percent of shares eligible to vote if not previously
approved by a majority of the disinterested members of the Board of
Directors unless certain minimum price criteria and procedural
requirements are satisfied. In a business combination involving cash
or other consideration being paid to the Company's stockholders, the
consideration would be required to be either cash or the same type of
consideration used by the interested stockholder in acquiring the
largest portion of its shares prior to the first public announcement
of the terms of the proposed business combination. In the case of
payments to holders of Common Stock, the per share fair market value
of such payments would generally have to be at least equal in value to
the higher of (i) the highest per share price paid by the interested
stockholder in acquiring any share of Common Stock during the two
years prior to such announcement date (although not an interested
stockholder at the time of any such acquisitions) or in the
transaction in which it became an interested stockholder (whichever is
higher) or (ii) the fair market value per share of Common Stock on
such announcement date or on the date on which the interested
stockholder became an interested stockholder, whichever is higher, in
either case appropriately adjusted for any stock dividend, stock split
or combination of shares. Unless a business combination is approved
by a majority of disinterested directors, it would be subject to the
75 percent stockholder vote requirement, even if it satisfied the
minimum price criteria, if the interested stockholder acquired any
additional shares of Common Stock, directly from the Company or
otherwise, in any transaction subsequent to the transaction pursuant
to which it became an interested stockholder. The Certificate of
Incorporation also contains an "anti-greenmail" provision prohibiting
-26-<PAGE>
certain purchases of shares by the Company from "interested
stockholders" without a majority vote of disinterested stockholders.
These provisions could limit stockholders' participation in certain
types of business combinations or other transactions that might be
proposed in the future whether or not such transactions were favored
by a majority of stockholders and could enhance the ability of
officers and directors to retain their positions. Since no more than
one-third of the directors are to be elected at each annual meeting,
action would be required at two annual meetings to change a majority
of the Board members, even by holders of a majority of shares who
believe a change may be beneficial.
The transfer agent for the Common Stock is Society National Bank,
One Park Central, 1515 Arapahoe Street, Suite 1505, Denver, Colorado
80202.
-27-<PAGE>
DESCRIPTION OF WARRANTS
GENERAL
The Company may issue Warrants, including Warrants to purchase
Debt Securities ("Debt Warrants"), as well as other types of Warrants.
Warrants may be issued independently or together with any Debt
Securities and may be attached to or separate from such Debt
Securities. Each series of Warrants will be issued under a separate
warrant agreement (each a "Warrant Agreement") to be entered into
between the Company and a warrant agent ("Warrant Agent"). The
Warrant Agent will act solely as an agent of the Company in connection
with the Warrants of such series and will not assume any obligation or
relationship of agency or trust for or with any holders or beneficial
owners of Warrants. The following sets forth certain general terms
and provisions of the Warrants offered hereby. Further terms of the
Warrants and the applicable Warrant Agreement are set forth in the
applicable Prospectus Supplement or Pricing Supplement.
DEBT WARRANTS
The applicable Prospectus Supplement will describe the following
terms of the Debt Warrants in respect of which this Prospectus is
being delivered: (1) the title of such Debt Warrants; (2) the
aggregate number of such Debt Warrants; (3) the price or prices at
which such Debt Warrants will be issued; (4) the currency or
currencies, including composite currencies, in which the price of such
Debt Warrants may be payable; (5) the designation, aggregate principal
amount and terms of the Debt Securities purchasable upon exercise of
such Debt Warrants; (6) if applicable, the designation and terms of
the Debt Securities with which such Debt Warrants are issued and the
number of such Debt Warrants issued with each such Debt Security; (7)
the currency or currencies, including composite currencies, in which
the principal of or any premium or interest on the Debt Securities
purchasable upon exercise of such Debt Warrant will be payable; (8) if
applicable, the date on and after which such Debt Warrants and the
related Debt Securities will be separately transferable; (9) the price
at which and currency or currencies, including composite currencies,
in which the Debt Securities purchasable upon exercise of such Debt
Warrants may be purchased; (10) the date on which the right to
exercise such Debt Warrants shall commence and the date on which such
right shall expire; (11) if applicable, the minimum or maximum amount
of such Debt Warrants which may be exercised at any one time; (12)
information with respect to book-entry procedures, if any; (13) if
applicable, a discussion of certain United States Federal income tax
considerations; and (14) any other terms of such Debt Warrants,
including terms, procedures and limitations relating to the exchange
and exercise of such Debt Warrants.
OTHER WARRANTS
The Company may issue other Warrants. The applicable Prospectus
Supplement will describe the following terms of any such other
Warrants in respect of which this Prospectus is being delivered: (1)
the title of such Warrants; (2) the securities (which may include
Preferred Stock or Common Stock) for which such Warrants are
exercisable; (3) the price or prices at which such Warrants will be
issued; (4) the currency or currencies, including composite
currencies, in which the price of such Warrants may be payable; (5) if
applicable, the designation and terms of the Debt Securities or
Preferred Stock with which such Warrants are issued and the number of
such Warrants issued with each such Debt Security or share of
Preferred Stock; (6) if applicable, the date on and after which such
Warrants and the related Debt Securities or Preferred Stock will be
separately transferable; (7) if applicable, a discussion of certain
United States Federal income tax considerations; and (8) any other
terms of such Warrants, including terms, procedures and limitations
relating to the exchange and exercise of such Warrants.
-28-<PAGE>
PLAN OF DISTRIBUTION
The Company may offer Securities to or through underwriters,
through agents or dealers or directly to other purchasers.
The distribution of Securities may be effected from time to time
in one or more transactions at a fixed price or prices, which may be
changed, at market prices prevailing at the time of sale, at prices
related to such market prices or at negotiated prices. The Company
also may offer and sell the Securities in exchange for one or more of
its outstanding issues of securities.
In connection with the sale of Securities, underwriters or agents
may receive compensation from the Company or from purchasers in the
form of discounts, concessions or commissions. Underwriters, agents
and dealers participating in the distribution of the Securities may be
deemed to be underwriters within the meaning of the Securities Act.
Pursuant to agreements which may be entered into between the
Company and any underwriters or agents named in the Prospectus
Supplement, such underwriters or agents may be entitled to
indemnification by the Company against certain liabilities, including
liabilities under the Securities Act.
If so indicated in the Prospectus Supplement, the Company may
engage in sales of its Common Stock through an agent or agents on a
continuous basis in an at-the-market equity offering.
If so indicated in the Prospectus Supplement, the Company will
authorize underwriters or other persons acting as agents for the
Company to solicit offers by certain institutional investors to
purchase Debt Securities or Preferred Stock from the Company pursuant
to contracts providing for payment and delivery on a future date.
Institutions with which such contracts may be made include commercial
and savings banks, insurance companies, pension funds, investment
companies, educational and charitable institutions and others, but
shall in all cases be subject to the approval of the Company. The
obligations of the purchaser under any such contract will not be
subject to any conditions except (i) the investment in the Debt
Securities or Preferred Stock by the institution shall not at the time
of delivery be prohibited by the laws of any jurisdiction in the
United States to which such institution is subject, and (ii) if a
portion of the Debt Securities or Preferred Stock is being sold to
underwriters, the Company shall have sold to such underwriters the
Debt Securities or Preferred Stock not sold for delayed delivery.
Underwriters and such other persons will not have any responsibility
in respect of the validity or performance of such contracts.
All Debt Securities, Preferred Stock and Warrants offered will be
a new issue of securities with no established trading market. Any
underwriters to whom such Debt Securities, Preferred Stock and
Warrants are sold by the Company for public offering and sale may make
a market in such Debt Securities, Preferred Stock and Warrants, but
such underwriters 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 or the trading markets for any Debt
Securities, Preferred Stock or Warrants.
Certain of the underwriters or agents and their associates may be
customers of, engage in transactions with and perform services for the
Company in the ordinary course of business.
The specific terms and manner of sale of the Securities in
respect of which this Prospectus is being delivered are set forth or
summarized in the Prospectus Supplement.
-29-<PAGE>
VALIDITY OF SECURITIES
The validity of the Securities offered will be passed upon for
the Company by Davis, Graham & Stubbs, L.L.C., Denver, Colorado.
EXPERTS
The consolidated financial statements as of December 31, 1994 and
1993 and for each of the three years in the period ended December 31,
1994, incorporated by reference in this Prospectus from the Company's
Annual Report on Form 10-K for the year ended December 31, 1994, have
been so incorporated in reliance on the report of Price Waterhouse
LLP, independent accountants, given on the authority of said firm as
experts in accounting and auditing.
-30-<PAGE>
========================================
NO DEALER, SALESMAN, OR OTHER
PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY
REPRESENTATION NOT CONTAINED OR
INCORPORATED BY REFERENCE IN THIS
PROSPECTUS SUPPLEMENT OR THE
ACCOMPANYING PROSPECTUS AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATION
MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY OR THE
UNDERWRITERS. NEITHER THIS PROSPECTUS
SUPPLEMENT NOR THE ACCOMPANYING
PROSPECTUS CONSTITUTES AN OFFER TO SELL
OR A SOLICITATION OF AN OFFER TO BUY ANY
OF THE SECURITIES OFFERED HEREBY IN ANY
JURISDICTION TO ANY PERSON TO WHOM IT IS
UNLAWFUL TO MAKE SUCH OFFER IN SUCH
JURISDICTION. NEITHER THE DELIVERY OF
THIS PROSPECTUS SUPPLEMENT OR THE
ACCOMPANYING PROSPECTUS NOR ANY SALE
MADE HEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE ANY IMPLICATION
THAT THE INFORMATION HEREIN IS CORRECT
AS OF ANY TIME SUBSEQUENT TO THE DATE
HEREOF OR THAT THERE HAS BEEN NO CHANGE
IN THE AFFAIRS OF THE COMPANY SINCE SUCH
DATE.
------------------------
TABLE OF CONTENTS
PAGE
----
Available Information . . . . . . . 3
Incorporation of Certain Documents
by Reference. . . . . . . . . . . 3
The Company . . . . . . . . . . . . 4
Use of Proceeds . . . . . . . . . . 5
Ratios of Earnings to Fixed Charges
and Earnings to Fixed Charges
and Preferred Stock Dividends . . 5
Price Range of Common Stock and
Dividends . . . . . . . . . . . . 6
Description of Debt Securities. . . 7
Description of Preferred Stock. . . 20
Description of Depositary Shares. . 24
Description of Common Stock . . . . 27
Description of Warrants . . . . . . 29
Plan of Distribution. . . . . . . . 30
Validity of Securities. . . . . . . 31
Experts . . . . . . . . . . . . . . 31
-------------------------
========================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following sets forth expenses, other than underwriting fees
and commissions, expected to be borne by the Registrants, in
connection with the distribution of the securities being registered:
Securities and Exchange Commission registration fee. . . . . $120,690
Blue Sky fees and expenses . . . . . . . . . . . . . . . . . 20,000
Rating agency fees . . . . . . . . . . . . . . . . . . . . . 150,000
Legal fees and expenses. . . . . . . . . . . . . . . . . . . 75,000
Printing . . . . . . . . . . . . . . . . . . . . . . . . . . 75,000
Accounting fees and expenses . . . . . . . . . . . . . . . . 30,000
Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . 100,000
-------
TOTAL . . . . . . . . . . . . . . . . . . . . . . . . . $570,690*
========
*All amounts listed above, except for the registration fee are
estimates.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Bylaws of Cyprus Amax and of Cyprus Amax Finance ("Finance")
provide that Cyprus Amax and Finance shall, to the full extent
permitted by the General Corporation Law of the State of Delaware, as
amended from time to time, indemnify all of their respective directors
and officers. Section 145 of the Delaware General Corporation Law
provides in part that a corporation shall have the power to indemnify
any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding
(other than an action by or in the right of the corporation) by reason
of the fact that such person is or was a director, officer, employee
or agent of the corporation or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation or other enterprise, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interest of
the corporation, and with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was
unlawful. Similar indemnity is authorized for such persons against
expenses (including attorneys' fees) actually and reasonably incurred
in defense or settlement of any threatened, pending or completed
action or suit by or in the right of the corporation, if such person
acted in good faith an in a manner he reasonably believed to be in or
not opposed to the best interest of the corporation, and provided
further that (unless a court of competent jurisdiction otherwise
provides) such person shall not have been adjudged liable to the
corporation. Any such indemnification may be made only as authorized
in each specific case upon a determination by the stockholders or
disinterested directors that indemnification is proper because the
indemnitee has met the applicable standard of conduct.
Additionally, each Certificate of Incorporation eliminates in
certain circumstances the monetary liability of directors of Cyprus
Amax and Finance for a breach of their fiduciary duty as directors.
This provision does not eliminate the liability of a director (i) for
a breach of the director's duty of loyalty to Cyprus Amax, Finance or
their respective stockholders; (ii) for acts or omissions by the
director not in good faith or which involve intentional misconduct or
a knowing violation of law; (iii) for liability arising under
Section 174 of the Delaware General Corporation Law (relating to the
declaration of dividends and purchase of redemption of shares in
violation of the Delaware General Corporation Law); or (iv) for any
transaction from which the director derived an improper personal
benefit.
A policy of directors' and officers' liability insurance is
maintained by Cyprus Amax, which policy insures directors and officers
for losses as a result of claims based upon their acts or omissions as
directors and officers of Cyprus Amax, including liabilities arising
under the Securities Act of 1933, and also reimburses
II-1<PAGE>
Cyprus Amax for payments made pursuant to the indemnity provisions
under the Delaware General Corporation Law.
ITEM 16. EXHIBITS
1.1 Form of Underwriting Agreement (incorporated by
reference to Exhibit 1.1 to Registration Statement on
Form S-3 (Registration No. 33-54097), dated June 10,
1994)
1.2 Form of Sales Agency Agreement*
1.3 Form of Distribution Agreement*
3.1 Certificate of Incorporation of Finance (incorporated
by reference to Exhibit 3.1 to Registration Statement
on Form S-3 (Registration No. 33-54097), dated June 10,
1994)
3.2 Bylaws of Finance (incorporated by reference to
Exhibit 3.2 to Registration Statement on Form S-3
(Registration No. 33-54097), dated June 10, 1994)
4.1 Form of Indenture for Senior Debt Securities
(incorporated by reference to Exhibit 4.1 to
Registration Statement on Form S-3 (Registration
No. 33-54097), dated June 10, 1994)
4.2 Form of Senior Debt Security (included in Exhibit 4.1)
(incorporated by reference to Exhibit 4.2 to
Registration Statement on Form S-3 (Registration
No. 33-54097), dated June 10, 1994)
4.3 Form of Indenture for Senior Subordinated Debt
Securities (incorporated by reference to Exhibit 4.3 to
Registration Statement on Form S-3 (Registration
No. 33-54097), dated June 10, 1994)
4.4 Form of Senior Subordinated Debt Security (included in
Exhibit 4.3) (incorporated by reference to Exhibit 4.4
to Registration Statement on Form S-3 (Registration
No. 33-54097), dated June 10, 1994)
4.5 Form of Indenture for Subordinated Debt Securities
(incorporated by reference to Exhibit 4.5 to
Registration Statement on Form S-3 (Registration
No. 33-54097), dated June 10, 1994)
4.6 Form of Subordinated Debt Securities (included in
Exhibit 4.5) (incorporated by reference to Exhibit 4.6
to Registration Statement on Form S-3 (Registration
No. 33-54097), dated June 10, 1994)
4.7 Form of Indenture for Guaranteed Debt Securities
(incorporated by reference to Exhibit 4.7 to Amendment
No. 1 to Registration Statement on Form S-3
(Registration No. 33-54097), dated July 12, 1994)
4.8 Form of Guaranteed Debt Securities (included in
Exhibit 4.7) (incorporated by reference to Exhibit 4.8
to Amendment No. 1 to Registration Statement on
Form S-3 (Registration No. 33-54097), dated July 12,
1994)
4.9 Form of Medium-Term Note*
4.10 Form of Certificate of Designations of Preferred Stock
(incorporated by reference to Exhibit 4.4 to Amendment
No. 2 to Registration Statement on Form S-3
(Registration No. 33-55794), dated June 27, 1993)
4.11 Form of Deposit Agreement, including form of Depositary
Receipt for Depositary Shares (incorporated by
reference to Exhibit 4.5 to Amendment No. 2 to
Registration Statement on Form S-3 (Registration
No. 33-55794), dated June 27, 1993)
4.12 Specimen Stock Certificate with respect to Preferred
Stock (incorporated by reference to Exhibit 4.6 to
Amendment No. 2 to Registration Statement on Form S-3
(Registration No. 33-55794), dated June 27, 1993)
4.13 Specimen Stock Certificate with respect to Common Stock
(incorporated by reference to Exhibit 4(c) to
Registration Statement on Form S-1 (Registration
No. 33-23802), dated July 14, 1988)
II-2<PAGE>
4.14 Rights Agreement between The Chase Manhattan, N.A. and
Cyprus Minerals Company, dated February 23, 1989, as
amended (incorporated by reference to Exhibit 2 to the
Report on 8-K dated January 29, 1990, Exhibit 4 to the
Report on Form 8-K dated January 29, 1990, and
Exhibit 1 to the Report on Form 8-K dated June 29,
1993)
5.1 Opinion of Davis, Graham & Stubbs, L.L.C.*
12.1 Statement re Computation of Ratios+
15.1 Letter of Price Waterhouse LLP re Interim Financial
Information+
23.1 Consent of Price Waterhouse LLP+
23.3 Consent of Davis, Graham & Stubbs - see Exhibit 5.1*
24.1 Powers of Attorney (included in signature pages)+
25.1 Statement of Eligibility of Trustee on Form T-1 with
respect to Senior Debt Securities*
25.2 Statement of Eligibility of Trustee on Form T-1 with
respect to Senior Subordinated Debt Securities*
25.3 Statement of Eligibility of Trustee on Form T-1 with
respect to Subordinated Debt Securities*
25.4 Statement of Eligibility of Trustee on Form T-1 with
respect to Guaranteed Debt Securities*
____________________
+ Filed herewith
* To be filed by amendment or subsequently incorporated herein
ITEM 17. UNDERTAKINGS
The Registrant hereby undertakes that, for the purposes of
determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to section 13(a) or
section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to section 15(d) of the Securities Exchange Act of 1934) that
is incorporated by reference in this Registration Statement shall be
deemed to be a new Registration Statement relating to the securities
offered herein, 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:
(a) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement:
(i) to include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate,
represent a fundamental change in the information set
forth in the Registration Statement; notwithstanding
the foregoing, any increase or decrease in volume of
securities offered (if the total dollar 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; and
II-3<PAGE>
(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 (a)(i) and (a)(ii) do not
-------- -------
apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act
of 1934, that are incorporated by reference in the
Registration Statement;
(b) That for purposes of determining any liability under the
Securities Act of 1933, the information omitted from the
form of prospectus filed as part of a Registration Statement
in reliance upon Rule 430A and contained in the form of
prospectus filed by the Registrant pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities Act of
1933 shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(c) That for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that
contains a form of prospectus shall be deemed to be a new
Registration Statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
(d) 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.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Securities Act of 1933
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the Registrant of expenses is incurred or paid by a director, officer
or controlling person of the Registrant in the successful defense of
any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication
of such issue.
The undersigned registrant hereby undertakes to file an
application for the purpose of determining the eligibility of the
Subordinated Trustee to act under subsection (a) of Section 310 of the
Trust Indenture Act in accordance with the rules and regulations
prescribed by the Commission under Section 305(b)(2) of the Trust
Indenture Act.
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 Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in Denver, Colorado on the
24th day of August, 1995.
CYPRUS AMAX MINERALS COMPANY
By: /s/ Gerald J. Malys
-------------------------------------
Gerald J. Malys
Senior Vice President and Chief
Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following person
in the capacities and on the dates indicated. Each person whose
signature to this Registration Statement appears below hereby appoints
each of Gerald J. Malys, Philip C. Wolf and Dale E. Huffman, as
his/her attorney-in-fact to sign on his/her behalf individually and in
the capacity stated below and to file all supplements, amendments and
post-effective amendments to this Registration Statement, and any and
all instruments or documents filed as a part of or in connection with
this Registration Statement or any amendment or supplement thereto,
and any such attorney-in-fact may make such changes and additions to
this Registration Statement as such attorney-in-fact may deem
necessary or appropriate.
Signatures Title Date
---------- ----- ----
/s/ Milton H. Ward Co-Chairman, President, August 24, 1995
--------------------------- and Chief Executive
Milton H. Ward Officer
/s/ Allen Born Co-Chairman
----------------------------
Allen Born
/s/ Gerald J. Malys Senior Vice President and August 24, 1995
---------------------------- Chief Financial Officer
Gerald J. Malys (Principal Financial
Officer)
/s/ John Taraba Vice President and August 24, 1995
---------------------------- Controller (Principal
John Taraba Accounting Officer)
/s/ Linda G. Alvarado Director August 24, 1995
----------------------------
Linda G. Alvarado
/s/ George S. Ansell Director August 24, 1995
----------------------------
George S. Ansell
/s/ William C. Bousquette Director August 24, 1995
----------------------------
William C. Bousquette
II-5<PAGE>
/s/ Thomas V. Falkie Director August 24, 1995
----------------------------
Thomas V. Falkie
/s/ Ann Maynard Gray Director August 24, 1995
----------------------------
Ann Maynard Gray
/s/ James C. Huntington, Jr. Director August 24, 1995
----------------------------
James C. Huntington, Jr.
/s/ Michael A. Morphy Director August 24, 1995
----------------------------
Michael A. Morphy
/s/ Rockwell A. Schnabel Director August 24, 1995
----------------------------
Rockwell A. Schnabel
/s/ Theodore M. Solso Director August 24, 1995
----------------------------
Theodore M. Solso
/s/ John Hoyt Stookey Director August 24, 1995
----------------------------
John Hoyt Stookey
/s/ James A. Todd, Jr. Director August 24, 1995
----------------------------
James A. Todd, Jr.
/s/ Billie B. Turner Director August 24, 1995
----------------------------
Billie B. Turner
II-6<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in Denver, Colorado on the
24th day of August, 1995.
CYPRUS AMAX FINANCE CORPORATION
By: /s/ Gerald J. Malys
-------------------------------------
Gerald J. Malys
Senior Vice President and Chief
Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following person
in the capacities and on the dates indicated. Each person whose
signature to this Registration Statement appears below hereby appoints
each of Gerald J. Malys, Philip C. Wolf and Dale E. Huffman, as
his/her attorney-in-fact to sign on his/her behalf individually and in
the capacity stated below and to file all supplements, amendments and
post-effective amendments to this Registration Statement, and any and
all instruments or documents filed as a part of or in connection with
this Registration Statement or any amendment or supplement thereto,
and any such attorney-in-fact may make such changes and additions to
this Registration Statement as such attorney-in-fact may deem
necessary or appropriate.
Signatures Title Date
---------- ----- ----
/s/ Milton H. Ward Director and President August 24, 1995
----------------------------
Milton H. Ward
/s/ Gerald J. Malys Director, Senior Vice August 24, 1995
---------------------------- President and Chief
Gerald J. Malys Financial Officer
(Principal Financial
Officer)
/s/ Philip C. Wolf Director, Senior Vice August 24, 1995
---------------------------- President, General
Philip C. Wolf Counsel and Secretary
/s/ John Taraba Vice President and August 24, 1995
---------------------------- Controller (Principal
John Taraba Accounting Officer)
II-7<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT PAGE
NUMBER DESCRIPTION NUMBER
<S> <C> <C>
12.1 Statement re Computation of Ratios
15.1 Letter of Price Waterhouse LLP re: Interim Financial Information
23.1 Consent of Price Waterhouse LLP
24.1 Powers of Attorney (included in signature pages)
</TABLE>
EXHIBIT 12.1
CYPRUS AMAX MINERALS COMPANY
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES AND
RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED
STOCK DIVIDEND REQUIREMENTS
(In millions)
<TABLE>
<CAPTION>
Six months Year ended December 31,
ended June 30, ------------------------------------------------
1995 1994 1993 1992 1991 1990
-------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
Income (Loss) before Discontinued
Operations and Cumulative Effect
of Accounting Changes 231 166 100 (246) 43 111
Income Tax Provision (Benefit) 62 55 31 (83) 11 13
Capitalized Interest (15) (16) -- (2) (5) --
Preferred Stock Dividend
Requirements of Subsidiary (4) -- -- -- -- --
Minority Interest (8) -- -- -- -- --
Equity (Income) Loss (3) 13 (7) -- -- --
----- ----- ----- ----- ----- -----
263 218 124 (331) 49 124
Fixed Charges
Interest 62 107 42 19 22 20
Amortization of Debt Expense 2 -- -- -- -- --
Interest Portion of Rental Expense 7 18 12 12 10 8
Preferred Stock Dividend
Requirements of Subsidiary 4 -- -- -- -- --
----- ----- ----- ----- ----- -----
Total Fixed Charges 75 125 54 31 32 28
Earnings (Loss) Before Income Taxes
and Fixed Charges 338 343 178 (300) 81 152
===== ===== ===== ===== ===== =====
Preferred Stock Dividend Requirements 11 24 3 15 18 16
----- ----- ----- ----- ----- -----
Combined Fixed Charges and Preferred
Stock Dividend Requirements 86 149 57 46 50 44
===== ===== ===== ===== ===== =====
Ratio of Earnings to Fixed Charges 4.5 2.7 3.3 <F1> 2.5 5.5
===== ===== ===== ===== ===== =====
Ratio of Earnings to Combined
Fixed Charges and Preferred Stock
Dividend Requirements 3.9 2.3 3.1 <F2> 1.6 3.4
===== ===== ===== ===== ===== =====
<FN>
<F1> Earnings for the year ended December 31, 1992, were inadequate to cover fixed charges by $332 million.
<F2> Earnings for the year ended December 31, 1992, were inadequate to cover combined fixed charges and preferred
stock dividend requirements by $347 million.
</TABLE>
August 24, 1995
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
We are aware that Cyprus Amax Minerals Company has included our
reports dated May 9, 1995 and August 11, 1995 (issued pursuant to the
provisions of Statement on Auditing Standards No. 71) in the
Prospectus constituting part of its Registration Statement on Form S-3
to be filed on or about August 25, 1995. We are also aware of our
responsibilities under the Securities Act of 1933.
Yours very truly,
Price Waterhouse LLP
Price Waterhouse LLP
CONSENT OF PRICE WATERHOUSE LLP
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our
report dated February 17, 1995, which appears on page 23 of the 1994
Annual Report to Shareholders of Cyprus Amax Minerals Company, which
is incorporated by reference in Cyprus Amax Minerals Company's Annual
Report on Form 10-K for the year ended December 31, 1994. We also
consent to the incorporation by reference of our report on the
Financial Statement Schedule, which appears on page 30 of such Annual
Report on Form 10-K. We also consent to the reference to us under the
heading "Experts" in such Prospectus.
PRICE WATERHOUSE LLP
PRICE WATERHOUSE LLP
Denver, Colorado
August 24, 1995
