<PAGE>
As filed with the Securities and Exchange Commission on April 5, 1995
Registration No. 33-57707
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________
AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
________________________
THE ROUSE COMPANY
(Exact name of registrant as specified in its charter)
MARYLAND 52-0735512
(State of Incorporation) (I.R.S. Employer
Identification No.)
The Rouse Company
10275 Little Patuxent Parkway
Columbia, Maryland 21044-3456
(410) 992-6000
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
_________________
Richard G. McCauley
Senior Vice-President,
General Counsel and Secretary
The Rouse Company
10275 Little Patuxent Parkway
Columbia, Maryland 21044-3456
(410) 992-6000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Larry P. Scriggins, Esquire Miroslav M. Fajt, Esquire
Piper & Marbury Haythe & Curley
36 South Charles Street 237 Park Avenue
Baltimore, Maryland 21201 New York, New York 10017
(410) 539-2530 (212) 880-6000
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Approximate date of commencement of proposed sale to the public: From time to
time after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are being offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. [X]
---------------------------------------------------------
<PAGE>
The registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of such State.
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED APRIL 5, 1995
PROSPECTUS
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480,168 Shares
THE ROUSE COMPANY
Series A Convertible Preferred Stock
(Liquidation Preference $50.00 Per Share)
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The shares of Series A Convertible Preferred Stock (the "Series A Preferred
Stock") of The Rouse Company (the "Company") covered by this Prospectus are
outstanding shares of Series A Preferred Stock. The shares of Series A
Preferred Stock or shares of Common Stock into which they may be converted are
to be offered and sold from time to time after the date of this Prospectus by
certain stockholders of the Company named herein under "Selling Stockholders."
The shares may be sold through brokers or to dealers in the over-the-
counter market or in negotiated transactions or otherwise, in each case at
prices satisfactory to the Selling Stockholders. Each of the Selling
Stockholders reserves the sole right to accept or reject, in whole or in part,
any proposed purchase of the shares of Series A Preferred Stock. See "Plan of
Distribution."
The brokers or dealers through or to whom the shares of the Company's
Series A Preferred Stock or Common Stock may be sold may be deemed underwriters
of the shares within the meaning of the Securities Act of 1933, in which event
all brokerage commissions or discounts and other compensation received by such
brokers or dealers may be deemed underwriting compensation.
The Company will receive no part of the proceeds from the sale of the
shares. The Selling Stockholders will pay all applicable stock transfer taxes,
transfer fees and brokerage commissions, and related fees and expenses, but the
Company will bear the cost of preparing the Registration Statement and
Prospectus and all filing fees and legal and accounting expenses in connection
with registration under federal and state securities laws. Such expenses are
estimated to be $37,155.
The Series A Preferred Stock is traded in the NASDAQ National Market System
under the symbol "ROUSP." The last sale on April 3, 1995 as reported in The
Wall Street Journal (Eastern Edition) was $51.00.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT PASSED ON OR ENDORSED THE
MERITS OF THIS OFFERING. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
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The date of this Prospectus is April 5, 1995.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports and other information with the Securities and Exchange
Commission (the "Commission"). Such reports, proxy and information statements
and other information filed with the Commission can be inspected and copied at
the Public Reference Room of the Commission, Room 1024, Judiciary Plaza, 450
Fifth Street, N.W., Washington, D.C. 20549; and its regional offices located at
Suite 1400, Northwestern Atrium Center, 500 West Madison Street, Chicago,
Illinois 60661; and 7 World Trade Center, New York, New York 10048. Copies of
such material can be obtained from the Public Reference Room of the Commission,
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed
rates. The Prospectus does not contain all the information set forth in the
Registration Statement and exhibits thereto which the Company has filed with the
Commission under the Securities Act of 1933, as amended, to which reference is
hereby made.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company hereby incorporates by reference into this Prospectus the
following documents filed with the Commission: its Annual Report on Form 10-K
for the fiscal year ended December 31, 1994 and its Report by Issuer of
Securities Quoted on NASDAQ Interdealer Quotation System on Form 10-C, filed
January 10, 1995.
All other documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering made hereby shall be deemed
incorporated by reference in this Prospectus and to be a part hereof from the
date of the filing of such documents. See "Available Information." Any
statement contained in a document incorporated or deemed to be incorporated
herein by reference 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 modifies or supersedes such statement.
The Company will provide without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered upon request of any such
person, a copy of any or all of the foregoing documents incorporated herein by
reference (other than exhibits to such documents not specifically incorporated
by reference). Written or telephone requests should be directed to David L.
Tripp, Vice-President and Director of Investor Relations, The Rouse Company,
10275 Little Patuxent Parkway, Columbia, Maryland 21044-3456, (410) 992-6000.
BACKGROUND
The shares of Series A Preferred Stock offered by this Prospectus were
purchased by the Selling Stockholders in a private placement that was effective
as of December 31, 1994.
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In connection with the private placement, the Company agreed to file this
Form S-3 Registration Statement covering all of the shares that were purchased
by the Selling Stockholders, and to act to keep the Registration Statement
continuously effective for a period of three years. Under its agreements with
the Selling Stockholders, the Company has the right to temporarily suspend
effectiveness of the Registration Statement in the event of material corporate
developments and other circumstances. Additional information regarding the
agreements between the Company and the Selling Stockholders is provided below
under "Plan of Distribution."
THE COMPANY
The Company was incorporated as a business corporation under the laws of
the State of Maryland in 1956. The Company's executive offices are located at
10275 Little Patuxent Parkway, Columbia, Maryland 21044-3456, and its telephone
number is (410) 992-6000.
The Company, through its subsidiaries and affiliates, is engaged in (i) the
acquisition, development, ownership and management of income-producing and other
real estate in the United States, including retail centers, office buildings,
mixed-use projects, community retail centers and two hotels, and the management
of one retail center in Canada, and (ii) the development and sale of land in and
around Columbia, Maryland to builders and other developers for residential,
commercial and industrial uses.
The ratio of earnings to fixed charges and Preferred stock dividends of
the Company for the five years ended December 31, 1994 are as follows:
<TABLE>
<CAPTION>
Year ended December 31,
---------------------------------------------------
1994 1993 1992 1991 1990
-------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
Ratio of earnings to
fixed charges and
Preferred stock
dividends (1) (1) (1) (1) (1) (1)
</TABLE>
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(1) Total fixed charges and Preferred stock dividends exceeded the Company's
earnings available for fixed charges and Preferred stock dividends by
$8,632,000, $17,723,000, $29,449,000, $10,347,000 and $28,363,000 for the
years ended December 31, 1994, 1993, 1992, 1991 and 1990, respectively.
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of the shares by
the Selling Stockholders.
SELLING STOCKHOLDERS
The following table sets forth the number of shares and percentage of the
Company's Series A Preferred Stock owned beneficially by the Selling
Stockholders as of March 28, 1995 and the number of shares of the Company's
Series A Preferred Stock offered by the Selling Stockholders hereby. Since the
Selling Stockholders may sell all or some of the Series A Preferred Stock
offered hereby, no estimate can be made of the aggregate amount of the Company's
Series A Preferred Stock that will be owned by each Selling Stockholder upon
completion of the offering to which this Prospectus relates. Moreover, the
number of shares of the Company's Series A Preferred Stock held by the Selling
Stockholders may change as a result of sales or purchases by the Selling
Stockholders after the date hereof. Except as otherwise noted, none of the
Selling Stockholders has had a material relationship within the past three years
with the Company and its subsidiaries, other than as a result of the ownership
or placement of the Company's Series A Preferred Stock.
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<TABLE>
<CAPTION>
Prior to Offering
----------------------- Shares
Percent of Offered
Shares Outstanding Hereby
--------- ------------ -------
<S> <C> <C> <C>
Pier 17 Realty Holding Company, Inc. 456,159 10.1% 456,159
Pearl Realty Holding Company, Inc. 8,003 .2% 8,003
Front Realty Holding Company, Inc. 16,006 .4% 16,006
</TABLE>
Effective as of December 31, 1994, the Company and a limited partnership
comprised of subsidiaries of the Company entered into agreements modifying a
restated permanent loan agreement, dated as of May 16, 1985, governing loans
relating to a project owned by such partnership. In the transaction, a number
of changes in the arrangements were made, including an exchange of a portion of
the indebtedness on the project for a $37.5 million loan, and the exchange of
that loan for the 480,168 shares of Series A Preferred Stock that are offered by
this Prospectus. Except for the relationships with respect to the financing of
such project, the Selling Stockholders are unrelated to the Company or any of
its subsidiaries.
PLAN OF DISTRIBUTION
The Selling Stockholders may sell the shares to or through underwriters or
dealers and also may sell the shares directly to other purchasers or through
agents. The dealers also may act as agents. The dealers or agents may receive
compensation in the form of underwriting discounts, concessions or commissions
from the Selling Stockholders or the purchasers of shares for which they may act
as agent. A purchaser of shares also may receive a commission from purchasers
of shares for whom it acts as agent. The purchaser may effect such transactions
by selling such shares to or through other broker-dealers, and such broker-
dealers may receive compensation in the form of discounts, concessions or
commissions from the purchaser and/or commissions from purchasers of such shares
for which such broker-dealers may act as agent. The purchaser and any broker-
dealer that participates with the purchaser in sales of such shares may be
deemed to be underwriters, and any commissions received by them and any profit
on the sale of such shares sold by them may be deemed to be underwriting
discounts and commissions under the Securities Act of 1933.
Neither the delivery of the Prospectus, or any Prospectus Supplement, nor
any other action taken by the Company, the Selling Stockholders or any purchaser
in connection with the purchase or sale of shares offered hereby shall be deemed
or treated as an admission that any of them is an underwriter within the meaning
of the Securities Act of 1933 in connection with any sales of shares.
When a particular offering of shares is made, a Prospectus Supplement, if
required, will be distributed which will set forth the aggregate amount and type
of shares being offered and the terms of the offering, including the name or
names of any underwriters, dealers or agents, any discounts, commissions and
other terms constituting compensation from the Selling Stockholders and any
discounts, commissions or concessions allowed or re-allowed or paid to dealers.
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The sale of the shares may be effected from time to time in one or more
transactions in the over-the-counter market, in negotiated transactions or in a
combination of such methods of sale at fixed prices (which may be changed from
time to time), at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices.
Any NASD member firm participating in a distribution of the shares will not
receive compensation in excess of fees which are customary and usual for similar
transactions.
The Selling Stockholders have agreed not to sell any of the shares for a
period not exceeding 90 days, if the Company's Chief Executive Officer, Board of
Directors or the Executive Committee or other duly constituted Committee of the
Board of Directors determines that the distribution of the Series A Preferred
Stock will materially adversely interfere with, or be inadvisable in light of a
public offering by the Company (for such time, not to exceed twenty (20)
business days, during the distribution period as the underwriters in good faith
deem advisable) or with a financing, acquisition, corporate reorganization or
other material or potentially material corporate transaction of the Company or
any subsidiary of the Company.
The Company has agreed to file the Registration Statement of which this
Prospectus is a part with the Commission and to use all reasonable efforts to
have it declared effective as soon as practicable after such filing. The
Company has agreed to use all reasonable efforts to keep the Registration
Statement of which this Prospectus is a part continuously effective until three
years after the Registration Statement is declared effective or for such shorter
period as will terminate when all the shares have been sold hereunder.
The Company has agreed with the Selling Stockholders that it will pay the
expenses incident to the offering and sale of the shares to the public, other
than discounts, commissions and fees and disbursements of dealers or agents
(except for fees and disbursements customarily paid by issuers of securities
under similar circumstances relating to compliance with applicable state
securities or "Blue Sky" laws and reasonable attorneys' fees of the Selling
Stockholders (up to $7,500)). In addition, the Selling Stockholders will be
indemnified by the Company against certain civil liabilities, including
liabilities under the Securities Act of 1933.
DESCRIPTION OF SERIES A CONVERTIBLE PREFERRED STOCK
The summary of certain terms and provisions of the Series A Preferred Stock
contained in this Prospectus does not purport to be complete and is subject to,
and qualified in its entirety by reference to, the terms and provisions of the
Company's Charter, as amended and restated (the "Charter"), Bylaws, as amended,
and the Articles Supplementary setting forth the particular terms of the Series
A Preferred Stock (the "Articles Supplementary"), copies of which are filed as
exhibits to the Registration Statement.
The Charter authorizes the issuance of 50,000,000 shares of preferred
stock, par value $.01 per share (the "Preferred Stock"). The Preferred Stock
may be issued from time to time in one or more series, without stockholder
approval, with such voting powers (full or limited),
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<PAGE>
designations, preferences and relative, participating, optional or other special
rights, and qualifications, limitations, or restrictions thereof as shall be
established by the Board of Directors. Thus, without stockholder approval, the
Company could authorize the issuance of Preferred Stock with voting, conversion
and other rights that could dilute the voting power and other rights of the
holders of Common Stock.
General
The Board of Directors has classified and authorized the issuance of an
aggregate of 4,505,168 shares of the Series A Preferred Stock as part of the
50,000,000 shares of the Company's authorized Preferred Stock.
The Series A Preferred Stock is validly issued, fully paid and
nonassessable. The holders of the Series A Preferred Stock have no preemptive
rights with respect to any shares of capital stock of the Company or any other
securities of the Company convertible into or carrying rights or options to
purchase any such shares. The Series A Preferred Stock is not subject to any
sinking fund or other obligation of the Company to redeem or retire the Series A
Preferred Stock. Unless converted or redeemed by the Company, the Series A
Preferred Stock has a perpetual term, with no maturity. The Series A Preferred
Stock is quoted on the NASDAQ National Market System under the symbol "ROUSP."
The shares of Common Stock issuable upon conversion or redemption of the Series
A Preferred Stock are quoted on the NASDAQ National Market System.
Ranking
The Series A Preferred Stock ranks senior to the Common Stock with respect
to payment of dividends and amounts upon liquidation, dissolution or winding up.
While any shares of Series A Preferred Stock are outstanding, the Company
may not authorize, create or increase the authorized amount of any class or
series of stock that ranks senior to the Series A Preferred Stock with respect
to the payment of dividends or amounts upon liquidation, dissolution or winding
up without the consent of the holders of two-thirds of the outstanding shares of
Series A Preferred Stock and all other shares of Voting Preferred Shares
(defined below), voting as a single class. However, the Company may create
additional classes of stock, increase the authorized number of shares of
Preferred Stock or issue series of Preferred Stock ranking on a parity with the
Series A Preferred Stock with respect, in each case, to the payment of dividends
and amounts upon liquidation, dissolution and winding up (a "Parity Stock")
without the consent of any holder of Series A Preferred Stock. See "Voting
Rights" below.
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<PAGE>
Dividends
Holders of shares of Series A Preferred Stock are entitled to receive,
when, as and if declared by the Board of Directors of the Company, out of funds
of the Company legally available for payment, cumulative cash dividends at the
rate per annum of 6.50% per share on the liquidation preference thereof or $3.25
per share of Series A Preferred Stock. Dividends on the Series A Preferred
Stock are payable quarterly on the first calendar day of January, April, July
and October of each year (and, in the case of any accrued but unpaid dividends,
at such additional times and for such interim periods, if any, as determined by
the Board of Directors), at such annual rate. Each such dividend is payable to
holders of record as they appear on the stock records of the Company at the
close of business on such record dates, not exceeding 60 days preceding the
payment dates thereof as shall be fixed by the Board of Directors of the
Company. Dividends have accrued from the date of the original issuance of the
Series A Preferred Stock. Dividends are cumulative from the most recent
dividend payment date to which dividends have been paid, whether or not in any
dividend period or periods there shall be funds of the Company legally available
for the payment of such dividends. Accumulations of dividends on shares of
Series A Preferred Stock will not bear interest. Dividends payable on the
Series A Preferred Stock for any period greater or less than a full dividend
period will be computed on the basis of a 360-day year consisting of twelve 30-
day months. Dividends payable on the Series A Preferred Stock for each full
dividend period will be computed by dividing the annual dividend rate by four.
Except as provided in the next sentence, no dividend will be declared or
paid on any Parity Stock unless full cumulative dividends have been declared and
paid or are contemporaneously declared and funds sufficient for payment set
aside on the Series A Preferred Stock for all prior dividend periods. If
accrued dividends on the Series A Preferred Stock for all prior dividend periods
have not been paid in full then any dividend declared on the Series A Preferred
Stock for any dividend period and on any Parity Stock will be declared ratably
in proportion to accrued and unpaid dividends on the Series A Preferred Stock
and such Parity Stock.
The Company will not (i) declare, pay or set apart funds for the payment of
any dividend or other distribution with respect to any Junior Stock (as defined
below) or (ii) redeem, purchase or otherwise acquire for consideration any
Junior Stock through a sinking fund or otherwise (other than a redemption or
purchase or other acquisition of shares of Common Stock made for purposes of an
employee incentive or benefit plan of the Company or any subsidiary), unless (A)
all cumulative dividends with respect to the Series A Preferred Stock and any
Parity Stock at the time such dividends are payable have been paid or funds have
been set apart for payment of such dividends and (B) sufficient funds have been
paid or set apart for the payment of the dividend for the current dividend
period with respect to the Series A Preferred Stock and any Parity Stock. The
foregoing limitations do not restrict the Company's ability to take the
foregoing actions with respect to any Parity Stock.
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<PAGE>
As used herein, (i) the term "dividend" does not include dividends payable
solely in shares of Junior Stock on Junior Stock, or in options, warrants or
rights to holders of Junior Stock to subscribe for or purchase any Junior Stock,
and (ii) the term "Junior Stock" means the Common Stock, and any other class of
capital stock of the Company now or hereafter issued and outstanding that ranks
junior as to the payment of dividends or amounts upon liquidation, dissolution
and winding up to the Series A Preferred Stock.
Redemption
Shares of Series A Preferred Stock are not redeemable by the Company prior
to March 1, 1996, and at no time will the Series A Preferred Stock be redeemable
for cash. On and after March 1, 1996, the shares of Series A Preferred Stock
will be redeemable at the option of the Company, in whole or in part, for such
number of shares of Common Stock as equals the liquidation preference of the
Series A Preferred Stock to be redeemed divided by the Conversion Price (as
defined below under "Conversion Rights") as of the opening of business on the
date set for such redemption (equivalent to a conversion rate of 2.3529 shares
of Common Stock for each share of Series A Preferred Stock), subject to
adjustment in certain circumstances. The Company may exercise this option only
if for 20 trading days, within any period of 30 consecutive trading days,
including the last trading day of such period, the closing price of the Common
Stock on NASDAQ exceeds $25.50, subject to adjustment in certain circumstances.
In order to exercise its redemption option, the Company must issue a press
release announcing the redemption prior to the opening of business on the second
trading day after the conditions in the preceding sentences have, from time to
time, been met, but in no event prior to March 1, 1996.
Notice of redemption will be given by mail or by publication (with
subsequent prompt notice by mail) to the holders of the Series A Preferred Stock
not more than four business days after the Company issues the press release.
The redemption date will be a date selected by the Company not less than 30 nor
more than 60 days after the date on which the Company issues the press release
announcing its intention to redeem the Series A Preferred Stock. If fewer than
all of the shares of Series A Preferred Stock are to be redeemed, the shares to
be redeemed shall be selected by lot or pro rata or in some other equitable
manner determined by the Company.
On the redemption date, the Company must pay on each share of Series A
Preferred Stock to be redeemed any accrued and unpaid dividends, in arrears, for
any dividend period ending on or prior to the redemption date. In the case of a
redemption date falling after a dividend payment record date and prior to the
related payment date, the holders of the Series A Preferred Stock at the close
of business on such record date will be entitled to receive the dividend payable
on such shares on the corresponding dividend payment date, notwithstanding the
redemption of such shares following such dividend payment record date. In the
case of any redemption of the Series A Preferred Stock prior to the record date
for the April 1, 1996 dividend payment date, the holders of the Series A
Preferred Stock to be redeemed will be entitled to accrued and unpaid dividends
until March 1, 1996, but not thereafter. Except as provided for in the
preceding
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<PAGE>
sentences, no payment or allowance will be made for accrued dividends on any
shares of Series A Preferred Stock called for redemption or on the shares of
Common Stock issuable upon such redemption.
In the event that full cumulative dividends on the Series A Preferred Stock
and any Parity Stock have not been paid or declared and set apart for payment,
the Series A Preferred Stock may not be redeemed in part and the Company may not
purchase or acquire shares of Series A Preferred Stock otherwise than pursuant
to a purchase or exchange offer made on the same terms to all holders of shares
of Series A Preferred Stock.
On and after the date fixed for redemption, provided that the Company has
made available at the office of the Registrar and Transfer Agent a sufficient
number of shares of Common Stock and an amount of cash to effect the redemption,
dividends will cease to accrue on the Series A Preferred Stock called for
redemption (except that, in the case of a redemption date after a dividend
payment record date and prior to the related dividend payment date, holders of
Series A Preferred Stock on the dividend payment record date will be entitled on
such dividend payment date to receive the dividend payable on such shares), such
shares shall no longer be deemed to be outstanding and all rights of the holders
of such shares as holders of Series A Preferred Stock shall cease except the
right to receive the shares of Common Stock upon such redemption and any cash
payable upon such redemption, without interest from the date of such redemption.
At the close of business on the redemption date, each holder of Series A
Preferred Stock (unless the Company defaults in the delivery of the shares of
Common Stock or cash) will be, without any further action, deemed a holder of
the number of shares of Common Stock for which such Series A Preferred Stock is
redeemable.
Fractional shares of Common Stock are not to be issued upon redemption of
the Series A Preferred Stock, but, in lieu thereof, the Company will pay a cash
adjustment based on the current market price of the Common Stock on the day
prior to the redemption date.
Liquidation Preference
The holders of shares of Series A Preferred Stock will be entitled to
receive in the event of any liquidation, dissolution or winding up of the
Company, whether voluntary or involuntary, $50.00 per share of Series A
Preferred Stock plus an amount per share of Series A Preferred Stock equal to
all dividends (whether or not earned or declared) accrued and unpaid thereon to
the date of final distribution to such holders (the "Liquidation Preference"),
and no more.
Until the holders of the Series A Preferred Stock have been paid the
Liquidation Preference in full, no payment will be made to any holder of Junior
Stock upon the liquidation, dissolution or winding up of the Company. If, upon
any liquidation, dissolution or winding up of the Company, the assets of the
Company, or proceeds thereof, distributable among the holders of the shares of
Series A Preferred Stock are insufficient to pay in full the Liquidation
Preference and the liquidation preference with respect to any other shares of
Parity Stock, then such assets,
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<PAGE>
or the proceeds thereof, will be distributed among the holders of shares of
Series A Preferred Stock and any such Parity Stock ratably in accordance with
the respective amounts which would be payable on such shares of Series A
Preferred Stock and any such Parity Stock if all amounts payable thereon were
paid in full. Neither a consolidation or merger of the Company with another
corporation, a statutory share exchange by the Company nor a sale or transfer of
all or substantially all of the Company's assets will be considered a
liquidation, dissolution or winding up, voluntary or involuntary, of the
Company.
Voting Rights
Except as indicated below, or except as otherwise from time to time
required by applicable law, the holders of shares of Series A Preferred Stock
have no voting rights.
If and whenever six quarterly dividends (whether or not consecutive)
payable on the Series A Preferred Stock or any other Parity Stock are in
arrears, whether or not earned or declared, the number of directors then
constituting the Board of Directors of the Company will be increased by two and
the holders of shares of Series A Preferred Stock, voting together as a class
with the holders of any other series of Parity Stock (any such other series, the
"Voting Preferred Shares"), will have the right to elect two additional
directors to serve on the Company's Board of Directors at an annual meeting of
stockholders or a properly called special meeting of the holders of the Series A
Preferred Stock and such Voting Preferred Shares and at each subsequent annual
meeting of stockholders until all such dividends and dividends for the current
quarterly period on the Series A Preferred Stock and such other Voting Preferred
Shares have been paid or declared and set aside for payment.
The approval of two-thirds of the outstanding shares of Series A Preferred
Stock and all other series of Voting Preferred Shares, acting as a single class
regardless of series either at a meeting of shareholders or by written consent,
is required in order to amend the Charter and Articles Supplementary to affect
materially and adversely the rights, preferences or voting powers of the holders
of the Series A Preferred Stock or the Voting Preferred Shares or to authorize,
create, or increase the authorized amount of, any class of stock having rights
senior to the Series A Preferred Stock with respect to the payment of dividends
or amounts upon liquidation, dissolution or winding up. However, the Company
may create additional classes of Parity and Junior Stock, increase the
authorized number of shares of Parity and Junior Stock and issue additional
series of Parity and Junior Stock without the consent of any holder of Series A
Preferred Stock.
Except as required by law, the holders of Series A Preferred Stock are not
entitled to vote on any merger or consolidation involving the Company or a sale
of all or substantially all of the assets of the Company. See "Conversion Price
Adjustments" below.
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<PAGE>
Conversion Rights
Shares of Series A Preferred Stock are convertible, in whole or in part, at
any time, at the option of the holders thereof, into shares of Common Stock at a
conversion price of $21.25 per share of Common Stock (equivalent to a conversion
rate of 2.3529 shares of Common Stock for each share of Series A Preferred
Stock), subject to adjustment as described below ("Conversion Price"). The
right to convert shares of Series A Preferred Stock called for redemption will
terminate at the close of business on a redemption date. For information as to
notices of redemption, see "Redemption" above.
Conversion of shares of Series A Preferred Stock, or a specified portion
thereof, may be effected by delivering certificates evidencing such shares,
together with written notice of conversion and a proper assignment of such
certificates to the Company or in blank, to the office or agency to be
maintained by the Company for that purpose. Currently such office is the
principal corporate trust office of The First National Bank of Maryland,
Baltimore, Maryland.
Each conversion will be deemed to have been effected immediately prior to
the close of business on the date on which the certificates for shares of Series
A Preferred Stock shall have been surrendered and notice shall have been
received by the Company as aforesaid (and if applicable, payment of any amount
equal to the dividend payable on such shares shall have been received by the
Company as described below) and the conversion shall be at the Conversion Price
in effect at such time and on such date.
Holders of shares of Series A Preferred Stock at the close of business on a
dividend payment record date are entitled to receive the dividend payable on
such shares on the corresponding dividend payment date notwithstanding the
conversion of such shares following such dividend payment record date and prior
to such dividend payment date. However, shares of Series A Preferred Stock
surrendered for conversion during the period between the close of business on
any dividend payment record date and the opening of business on the
corresponding dividend payment date (except shares converted after the issuance
of a notice of redemption with respect to a redemption date during such period,
which will be entitled to such dividend) must be accompanied by payment of an
amount equal to the dividend payable on such shares on such dividend payment
date. A holder of shares of Series A Preferred Stock on a dividend record date
who (or whose transferee) tenders any such shares for conversion into shares of
Common Stock on such dividend payment date will receive the dividend payable by
the Company on such shares of Series A Preferred Stock on such date, and the
converting holder need not include payment of the amount of such dividend upon
surrender of shares of Series A Preferred Stock for conversion. Except as
provided above, the Company will make no payment or allowance for unpaid
dividends, whether or not in arrears, on converted shares or for dividends on
the shares of Common Stock issued upon such conversion.
Fractional shares of Common Stock are not to be issued upon conversion but,
in lieu thereof, the Company will pay a cash adjustment based on the current
market price of the Common Stock on the day prior to the conversion date.
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<PAGE>
Conversion Price Adjustments
The Conversion Price is subject to adjustment upon certain events,
including (i) dividends (and other distributions) payable in Common Stock or any
class of capital stock of the Company, (ii) the issuance to all holders of
Common Stock of certain rights or warrants entitling them to subscribe for or
purchase Common Stock at a price per share less than the fair market value per
share of Common Stock, (iii) subdivisions, combinations and reclassifications of
Common Stock, and (iv) distributions to all holders of Common Stock of evidences
of indebtedness of the Company or assets (including securities, but excluding
those dividends, rights, warrants and distributions referred to above and
dividends and distributions paid in cash out of equity, including revaluation
equity, applicable to Common Stock). In addition to the foregoing adjustments,
the Company will be permitted to make such reductions in the Conversion Price as
it considers to be advisable in order that any event treated for Federal income
tax purposes as a dividend of stock or stock rights will not be taxable to the
holders of the Common Stock.
In case the Company shall be a party to any transaction (including without
limitation a merger, consolidation, statutory share exchange, tender offer for
all or substantially all of the shares of Common Stock or sale of all or
substantially all of the Company's assets), in each case as a result of which
shares of Common Stock will be converted into the right to receive stock,
securities or other property (including cash or any combination thereof), each
share of Series A Preferred Stock, if convertible after the consummation of the
transaction, will thereafter be convertible into the kind and amount of shares
of stock and other securities and property receivable (including cash or any
combination thereof) upon the consummation of such transaction by a holder of
that number of shares or fraction thereof of Common Stock into which one share
of Series A Preferred Stock was convertible immediately prior to such
transaction (assuming such holder of Common Stock failed to exercise any rights
of election and received per share the kind and amount received per share by a
plurality of non-electing shares). The Company may not become a party to any
such transaction unless the terms thereof are consistent with the foregoing.
No adjustment of the Conversion Price is required to be made in any case
until cumulative adjustments amount to 1% or more of the Conversion Price. Any
adjustments not so required to be made will be carried forward and taken into
account in subsequent adjustments.
Transfer Agent, Registrar, Dividend Disbursing Agent and Redemption Agent
The transfer agent, registrar, dividend disbursing agent and redemption
agent for the shares of Series A Preferred Stock is The First National Bank of
Maryland, Baltimore, Maryland.
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<PAGE>
DESCRIPTION OF COMMON STOCK
The summary of certain terms and provisions of the Common Stock contained
in this Prospectus does not purport to be complete and is subject to, and
qualified in its entirety by reference to the terms and provisions of the
Company's Charter and By-Laws, as amended, copies of which are filed as exhibits
to the Registration Statement.
The Company has 250 million shares of Common Stock authorized and, as of
March 27, 1995, 47,797,608 shares of Common Stock were issued. All outstanding
shares of Common Stock are fully paid and non-assessable.
The Company has outstanding 500,000 warrants to purchase Common Stock (the
"Warrants"). Each Warrant allows the holder thereof to purchase one share of
Common Stock at an exercise price of $18.00 per share of Common Stock, subject
to adjustment in certain circumstances. The Warrants expire on September 23,
1997.
The Company also has outstanding $130,000,000 aggregate principal amount of
5-3/4% Convertible Subordinated Debentures due 2002. The Convertible
Subordinated Debentures are convertible into Common Stock at a conversion price
equal to $28.625 principal amount of each debenture for each share of Common
Stock (subject to adjustment in certain circumstances).
Dividend Rights
The holders of Common Stock are entitled to receive such dividends as are
declared by the Board of Directors, after payment of, or provision for, full
cumulative dividends for outstanding Preferred Stock.
Voting Rights
Each share of Common Stock is entitled to one vote on all matters submitted
to a vote of stockholders, including the election of directors. Cumulative
voting for directors is not permitted. Holders of Common Stock and Preferred
Stock, when outstanding and when entitled to vote, vote as a class, except with
respect to matters that relate only to the rights, terms or conditions of the
Preferred Stock, that affect only the holders of the Preferred Stock, or that
relate to the rights of the holders of the Preferred Stock if the Company fails
to fulfill any of its obligations regarding the Preferred Stock.
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<PAGE>
Liquidation Rights
Upon any dissolution, liquidation or winding up of the Company, the holders
of Common Stock are entitled to receive pro rata all of the Company's assets and
funds remaining after payment of, or provision for, creditors and distribution
of, or provision for, preferential amounts and unpaid accumulated dividends to
holders of Preferred Stock, including the Series A Preferred Stock.
Preemptive Rights
Holders of Common Stock have no preemptive right to purchase or subscribe
for any shares of capital stock of the Company.
Special Statutory Requirements for Certain Transactions
Business Combination Statute. The Maryland General Corporation Law
establishes special requirements with respect to "business combinations" between
Maryland corporations and "interested stockholders" unless exemptions are
applicable. Among other things, the law prohibits for a period of five years a
merger or other specified transactions between a company and an interested
stockholder and requires a super-majority vote for such transactions after the
end of such five-year period.
"Interested stockholders" are all persons owning beneficially, directly or
indirectly, 10% or more of the outstanding voting stock of a Maryland
corporation. "Business combinations" include any merger or similar transaction
subject to a statutory vote and additional transactions involving transfers of
assets or securities in specified amounts to interested stockholders or their
affiliates. Unless an exemption is available, transactions of these types may
not be consummated between a Maryland corporation and an interested stockholder
or its affiliates for a period of five years after the date on which the
stockholder first became an interested stockholder and thereafter may not be
consummated unless recommended by the board of directors of the Maryland
corporation and approved by the affirmative vote of at least 80% of the votes
entitled to be cast by all holders of outstanding shares of voting stock and 66-
2/3% of the votes entitled to be cast by all holders of outstanding shares of
voting stock other than the interested stockholder. A business combination with
an interested stockholder which is approved by the board of directors of a
Maryland corporation at any time before an interested stockholder first becomes
an interested stockholder is not subject to the five-year moratorium or special
voting requirements. An amendment to a Maryland corporation charter electing
not to be subject to the foregoing requirements must be approved by the
affirmative vote of at least 80% of the votes entitled to be cast by all holders
of outstanding shares of voting stock and 66-2/3% of the votes entitled to be
cast by all holders of outstanding shares of voting stock who are not interested
stockholders. Any such amendment is not effective until 18 months after the
vote of stockholders and does not apply to any business combination of a
corporation with a stockholder who was an interested
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<PAGE>
stockholder on the date of the stockholder vote. The Company has not adopted
any such amendment to its Restated Articles of Incorporation, and this statute
is applicable to the Company.
Control Share Acquisition Statute. The Maryland General Corporation law
imposes limitations on the voting rights of shares acquired in a "control share
acquisition," but the Company has elected not to be subject to such provisions.
The Maryland statute defines a "control share acquisition" at the 20%, 33-1/3%
and 50% acquisition levels, and requires a two-thirds stockholder vote
(excluding shares owned by the acquiring person and certain members of
management) to accord voting rights to stock acquired in a control share
acquisition. The statute also requires Maryland corporations to hold a special
meeting at the request of an actual or proposed control share acquirer generally
within 50 days after a request is made with the submission of an "acquiring
person statement," but only if the acquiring person (a) posts a bond for the
cost of the meeting and (b) submits a definitive financing agreement to the
extent that financing is not provided by the acquiring person. In addition,
unless the charter or bylaws provide otherwise, the statute gives the Maryland
corporation, within certain time limitations, various redemption rights if there
is a stockholder vote on the issue and the grant of voting rights is not
approved, or if an "acquiring person statement" is not delivered to the target
within 10 days following a control share acquisition. Moreover, unless the
charter or bylaws provide otherwise, the statute provides that if, before a
control share acquisition occurs, voting rights are accorded to control shares
which result in the acquiring person having majority voting power, then minority
stockholders have appraisal rights. An acquisition of shares may be exempted
from the control share statute provided that a charter or bylaw provision is
adopted for such purpose prior to the control share acquisition. The Company
has elected through a bylaw provision not to be subject to the control share
statute.
Reference is made to the full text of the foregoing statutes for their
entire terms, and the partial summary contained in this Prospectus is not
intended to be complete.
Transfer Agent and Registrar
The transfer agent and registrar for the Common Stock is The First National
Bank of Maryland, Baltimore, Maryland.
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
The following is a general discussion of certain federal income tax
consequences to holders of the Series A Preferred Stock. This summary does not
purport to discuss all of the federal income tax consequences that may be
applicable to particular categories of investors (such as broker-dealers,
foreign persons, non-resident alien individuals, insurance companies, tax exempt
organizations, persons subject to the alternative minimum tax, and financial
institutions) and does not discuss foreign, state or local tax consequences.
This summary is based upon the
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<PAGE>
Internal Revenue Code of 1986, as amended (the "Code"), regulations promulgated
thereunder ("Regulations"), court decisions and administrative rulings and
practice, all as in effect on the date of this Prospectus. Future legislative,
judicial or administrative changes, which might or might not have retroactive
application, could modify significantly the statements and conclusions expressed
in this summary. The Company will not request any rulings from the Internal
Revenue Service regarding the tax consequences of an investment in shares of the
Series A Preferred Stock. Each potential investor is advised to consult its own
tax advisor concerning the federal, state, local and foreign tax consequences of
an investment in shares of the Series A Preferred Stock.
The following discussion is based on the assumption that shares of the
Series A Preferred Stock are held as capital assets within the meaning of
Section 1221 of the Code.
Distributions on Series A Preferred Stock
Distributions paid on the Series A Preferred Stock will be treated as
dividends taxable as ordinary income to the holders to the extent of the
Company's current or accumulated earnings and profits as determined under
federal income tax principles. The Company does not at present have any current
or accumulated earnings and profits for federal income tax purposes. There can
be no assurance that in any taxable year the Company will have current or
accumulated earnings and profits such that distributions with respect to the
Series A Preferred Stock will qualify in whole or in part as dividends for
federal income tax purposes. To the extent that the amount of distributions
paid on the Series A Preferred Stock exceeds the Company's current or
accumulated earnings and profits, such distributions will be treated as a
nontaxable return of capital and will be applied against and reduce the adjusted
tax basis of the Series A Preferred Stock in the hands of each holder (but not
below zero). The amount of any such distribution which exceeds the adjusted tax
basis of the Series A Preferred Stock in the hands of the holder will be treated
as capital gain and will be long-term capital gain if the holder's holding
period for the Series A Preferred Stock exceeds one year. Under current law,
long-term capital gains of noncorporate taxpayers are generally taxed at rates
more favorable than those applicable to other types of income. There are
currently pending before the U.S. Congress certain legislative proposals that
would affect the manner in which capital gains are taxed; whether any such
proposals will be enacted into law and, if so, in what form they will be
enacted, is currently unknown. Under Section 243 of the Code, corporate
stockholders generally will be able, subject to certain exceptions and
restrictions, to deduct 70% of the amount of any distribution qualifying as a
dividend.
Redemption or Conversion of Series A Preferred Stock for or into Common Stock
The discussion in this paragraph assumes that shares of the Series A
Preferred Stock will not be redeemed or converted at a time when there are
dividends in arrears. Generally, no gain or loss will be recognized for federal
income tax purposes on redemption or conversion of the Series A Preferred Stock
into or for shares of Common Stock (except that cash paid in lieu of
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<PAGE>
fractional shares of Common Stock will be taxed as though such cash had been
received in redemption of such fractional share interest). The tax basis of the
shares of Common Stock received upon redemption or conversion will be equal to
the adjusted tax basis of the Series A Preferred Stock redeemed or converted,
less any amount of basis allocable to the fractional shares, and the holding
period of such shares of Common Stock will include the holding period of the
Series A Preferred Stock redeemed or converted.
Adjustment of Conversion Price
Certain adjustments to the conversion price of the Series A Preferred Stock
may, under certain circumstances, be treated as constructive distributions that
are taxable to holders of the Series A Preferred Stock at the time of adjustment
under Sections 301 and 305 of the Code.
Backup Withholding
Under Section 3406 of the Code and applicable Regulations, a noncorporate
holder of the Series A Preferred Stock or Common Stock may be subject to backup
withholding at the rate of 31% with respect to reportable payments of dividends
accrued with respect to, or the proceeds of a sale, exchange or redemption of,
the Series A Preferred Stock or Common Stock, as the case may be. The payor
will be required to deduct and withhold the prescribed amount with respect to
all such reportable payments if (i) the payee fails to furnish a taxpayer
identification number ("TIN") to the payor; or (ii) the Secretary of the
Treasury notifies the payor that the TIN furnished by the payee is incorrect.
In addition, the payor will also be required to deduct and withhold the
prescribed amount with respect to dividend payments if (iii) there has been a
"notified payee underreporting," as described in Section 3406(c) of the Code; or
(iv) there has been a failure of the payee to certify to the payor under the
penalty of perjury that such payee is not subject to withholding, as described
in Section 3406(d) of the Code. Amounts paid as backup withholding do not
constitute an additional tax and will be credited against the holder's federal
income tax liabilities.
THE FOREGOING DISCUSSION OF CERTAIN FEDERAL INCOME TAX CONSEQUENCES IS FOR
GENERAL INFORMATION ONLY AND IS NOT INTENDED AS A SUBSTITUTE FOR CAREFUL TAX
PLANNING. ACCORDINGLY, EACH INVESTOR SHOULD CONSULT HIS OWN TAX ADVISOR AS TO
PARTICULAR TAX CONSEQUENCES OF PURCHASING, HOLDING AND DISPOSING OF THE SERIES A
PREFERRED STOCK, INCLUDING THE APPLICATION AND EFFECT OF STATE, LOCAL OR FOREIGN
TAX LAWS.
LEGAL OPINION
The validity of the Series A Preferred Stock and of the shares of Common
Stock into which it is convertible to which this Prospectus relates is being
passed upon for the Company by Richard G. McCauley, Esq., Senior Vice-President,
General Counsel and Secretary of the
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<PAGE>
Company. As of December 31, 1994, Mr. McCauley was the direct owner of 105,037
shares of the Company's Common Stock (excluding shares of the Company's Common
Stock held in his account under the Company's 401(k) Savings Plan), certain
family members owned 21,295 shares (as to which shares he disclaims beneficial
ownership) and he held options to purchase 112,500 shares, of which options to
purchase 39,500 shares were presently exercisable.
EXPERTS
The audited consolidated financial statements and schedules incorporated in
this Prospectus by reference to the Company's Annual Report on Form 10-K for the
year ended December 31, 1994 have been so incorporated in reliance upon (1) the
report of KPMG Peat Marwick LLP, independent certified public accountants,
incorporated by reference herein, and the authority of that firm as experts in
accounting and auditing, and (2) with respect to the current value basis
financial statements, the report of Landauer Associates, Inc., real estate
counselors and consultants, incorporated by reference herein, and upon the
authority of that firm as experts in real estate consultation. The report of
KPMG Peat Marwick LLP covering the December 31, 1991 financial statements refers
to a change in the Company's method of accounting for income taxes.
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<PAGE>
================================================================================
No dealer, salesperson or other person has been authorized to give any
information or to make any representations other than those contained in this
Prospectus or any Prospectus Supplement in connection with the offer made by
this Prospectus or any Prospectus Supplement, and, if given or made, such
information or representations must not be relied upon as having been authorized
by the Company or any of the Selling Stockholders. This Prospectus or any
Prospectus Supplement does not constitute an offer to sell or a solicitation of
an offer to buy any of these securities in any jurisdiction to any person to
whom it is unlawful to make such offer or solicitation. Except where otherwise
indicated, this Prospectus or any Prospectus Supplement speaks as of the date of
this Prospectus or any Prospectus Supplement. Neither the delivery of this
Prospectus or any Prospectus Supplement nor any sale hereunder shall under any
circumstances create any implication that there has been no change in the
affairs of the Company since the date hereof or thereof.
-------------------------
TABLE OF CONTENTS
Page
Available Information.....................................
Incorporation of Certain
Documents by Reference..................................
Background................................................
The Company...............................................
Use of Proceeds...........................................
Selling Stockholders......................................
Plan of Distribution......................................
Description of Series A Convertible
Preferred Stock.........................................
Description of Common Stock...............................
Certain Federal Income
Tax Considerations......................................
Legal Opinion.............................................
Experts...................................................
================================================================================
================================================================================
480,168 Shares
THE ROUSE COMPANY
Series A Convertible
Preferred Stock
--------------
PROSPECTUS
--------------
April 5, 1995
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the Company's expenses in connection
with the offering described in this Registration Statement. Except for the
registration fee, the amounts listed below are estimates.
<TABLE>
<S> <C>
Registration Fee - Securities and Exchange Commission $ 8,155
Legal fees and disbursements 15,000
Accounting fees and disbursements 7,000
Blue Sky fees and expenses (including legal fees) 2,000
Miscellaneous 5,000
-------
Total $37,155
</TABLE>
All of the foregoing expenses will be borne by the Company.
Item 15. Indemnification of Directors and Officers.
Article XIII of the Bylaws of the Company provides that directors and
officers of the Company shall be indemnified by the Company to the fullest
extent permitted by Maryland law as now or hereafter in force, including the
advance of related expenses. If any determination is required under applicable
law as to whether a director or officer is entitled to indemnification, such
determination shall be made by independent legal counsel retained by the Company
and appointed by either the Board of Directors or the Chief Executive Officer.
A copy of Section 2-418 of the Corporations and Associations Article of the
Annotated Code of Maryland is included as an Exhibit to this Registration
Statement.
The Company maintains directors and officers insurance on behalf of its
directors, officers and certain other persons against any liability asserted
against them in any such capacity. The Series A Convertible Preferred Stock
Exchange Agreement contained in Exhibit 99.2 provides for indemnification of the
directors and officers signing the Registration Statement and certain
controlling persons of the Company against certain liabilities, including
certain liabilities under the Securities Act of 1933, as amended, in certain
instances by each Selling Stockholder participating in the offering of Series A
Preferred Stock.
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<PAGE>
Item 16. Exhibits.
The following exhibits are filed as part of this Registration Statement
(including by incorporation by reference):
4.1 Amended and Restated Articles of Incorporation of The Rouse
Company, dated May 27, 1988 (which are incorporated by
reference from the Exhibits to the Company's Form 10-K Annual
Report for the fiscal year ended December 31, 1988).
4.2 Articles of Amendment to the Amended and Restated Articles of
Incorporation of The Rouse Company, effective January 10, 1991
(which are incorporated by reference from the Exhibits to the
Company's Form 10-K Annual Report for the fiscal year ended
December 31, 1990).
4.3 Articles Supplementary to the Charter of The Rouse Company
dated February 17, 1993 (which are incorporated by reference
from the Exhibits to the Company's Form 10-K Annual Report for
the fiscal year ended December 31, 1992).
4.4 Articles Supplementary to the Charter of The Rouse Company,
dated September 26, 1994.*
4.5 Articles Supplementary to the Charter of The Rouse Company,
dated December 27, 1994.*
4.6 Bylaws of The Rouse Company, as amended September 22, 1994
(which are incorporated by reference from the Exhibits to the
Company's Form 10-Q Quarterly Report for the quarter ended
September 30, 1994).
5.1 Opinion and Consent of Richard G. McCauley, Esq.
12.1 Computation of Ratio of Earnings to Combined Fixed Charges and
Preferred Stock Dividends.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Landauer Associates, Inc.
23.3 Consent of Richard G. McCauley, Esq. (included in Exhibit 5.1
above).
24.1 Power of Attorney, dated March 16, 1993 (which is incorporated
by reference from the Exhibits to the Company's Form S-3
Registration Statement (No. 33-57347)).
24.2 Power of Attorney, dated September 24, 1992 (which is
incorporated by reference from the Exhibits to the Company's
Form S-3 Registration Statement (No. 33-52458)).
24.3 Power of Attorney, dated December 3, 1992 (which is
incorporated by reference from the Exhibits to the Company's
Form S-3 Registration Statement (No. 33-52458)).
99.1 Section 2-418 of the Corporations and Associations Article of
the Annotated Code of Maryland (which is incorporated by
reference from the Exhibits to the Company's Form S-3
Registration Statement (No. 33-56646)).
99.2 Series A Convertible Preferred Stock Exchange Agreement, dated
as of December 31, 1994, by and among the Company and the
Selling Stockholders.*
99.3 Retirement Agreement, dated November 30, 1994, between the
Company and Mathias J. DeVito, then Chairman of the Board and
Chief Executive Officer of the Company.*
*Previously filed.
II-2
<PAGE>
Item 17. Undertakings.
Undertakings to Update Annually. The undersigned registrant hereby
undertakes:
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) to include any Prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) to reflect in the Prospectus any facts or events
arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement; and
(iii) to include any material information with respect to
the plan of distribution not previously disclosed in the
Registration Statement or any material change to such information
in the Registration Statement;
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
Registration Statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement;
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof; and
(3) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
Incorporation of Subsequent Exchange Act Documents. The undersigned
registrant hereby undertakes that, for purposes of determining any liability
under the Securities Act of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934 that is incorporated by reference in the Registration Statement shall be
deemed to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
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<PAGE>
Indemnification. 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 provisions referred to in
Item 15 of this Registration Statement, 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 Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2
to the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the County of Howard and the State of Maryland, on
the 5th day of April, 1995.
THE ROUSE COMPANY
By: /s/ Anthony W. Deering
------------------------------
Anthony W. Deering
President,
Chief Executive Officer and Director
Pursuant to the requirements of the Securities Act of 1933, this
Amendment No. 2 to the Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
Principal Executive Officer:
/s/ Anthony W. Deering President, April 5, 1995
- ------------------------------ Chief Executive Officer
Anthony W. Deering and Director
Principal Financial Officer:
/s/ Jeffrey H. Donahue Senior Vice-President April 5, 1995
- ------------------------------ and Chief Financial Officer
Jeffrey H. Donahue
Principal Accounting Officer:
/s/ George L. Yungmann Senior Vice-President April 5, 1995
- ------------------------------ and Controller
George L. Yungmann
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<PAGE>
The Board of Directors
David H. Benson, Jeremiah E. Casey, Anthony W. Deering, Rohit M. Desai, Mathias
J. DeVito, Juanita T. James, Thomas J. McHugh, Hanne M. Merriman, Roger W.
Schipke and Alexander B. Trowbridge.
By: /s/ Mathias J. DeVito For himself and as April 5, 1995
----------------------------- Attorney-in-Fact
Mathias J. DeVito for the above-named
members of the Board
of Directors.
II-6
<PAGE>
Exhibit Index
4.1 Amended and Restated Articles of Incorporation of The Rouse
Company, dated May 27, 1988 (which are incorporated by reference
from the Exhibits to the Company's Form 10-K Annual Report for
the fiscal year ended December 31, 1988).
4.2 Articles of Amendment to the Amended and Restated Articles of
Incorporation of The Rouse Company, effective January 10, 1991
(which are incorporated by reference from the Exhibits to the
Company's Form 10-K Annual Report for the fiscal year ended
December 31, 1990).
4.3 Articles Supplementary to the Charter of The Rouse Company dated
February 17, 1993 (which are incorporated by reference from the
Exhibits to the Company's Form 10-K Annual Report for the fiscal
year ended December 31, 1992).
4.4 Articles Supplementary to the Charter of The Rouse Company,
dated September 26, 1994.*
4.5 Articles Supplementary to the Charter of The Rouse Company,
dated December 27, 1994.*
4.6 Bylaws of The Rouse Company, as amended September 22, 1994
(which are incorporated by reference from the Exhibits to the
Company's Form 10-Q Quarterly Report for the quarter ended
September 30, 1994).
5.1 Opinion and Consent of Richard G. McCauley, Esq.
12.1 Computation of Ratio of Earnings to Combined Fixed Charges and
Preferred Stock Dividends.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Landauer Associates, Inc.
23.3 Consent of Richard G. McCauley, Esq. (included in Exhibit 5.1
above).
24.1 Power of Attorney, dated March 16, 1993 (which is incorporated
by reference from the Exhibits to the Company's Form S-3
Registration Statement (No. 33-57347)).
24.2 Power of Attorney, dated September 24, 1992 (which is
incorporated by reference from the Exhibits to the Company's
Form S-3 Registration Statement (No. 33-52458)).
24.3 Power of Attorney, dated December 3, 1992 (which is incorporated
by reference from the Exhibits to the Company's Form S-3
Registration Statement (No. 33-52458)).
99.1 Section 2-418 of the Corporations and Associations Article of
the Annotated Code of Maryland (which is incorporated by
reference from the Exhibits to the Company's Form S-3
Registration Statement (No. 33-56646)).
99.2 Series A Convertible Preferred Stock Exchange Agreement, dated
as of December 31, 1994, by and among the Company and the
Selling Stockholders.*
99.3 Retirement Agreement, dated November 30, 1994, between the
Company and Mathias J. DeVito, then Chairman of the Board and
Chief Executive Officer of the Company.*
*Previously filed.
-1-
<PAGE>
Exhibit 5.1
April 5, 1995
The Rouse Company
10275 Little Patuxent Parkway
Columbia, Maryland 21044-3456
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
I have acted as counsel for The Rouse Company (the "Company") in connection
with the Registration Statement on Form S-3 which was filed by the Company under
the Securities Act of 1933, as amended (the "Registration Statement"), and which
registers 480,168 shares of the Series A Convertible Preferred Stock of the
Company, par value $0.01 per share (the "Stock") and the Common Stock
issuable upon its conversion to be sold from time to time by the Selling
Stockholders specified therein.
In that capacity, I have examined the originals, or certified, conformed or
reproduction copies, of the Articles of Incorporation of the Company, as amended
and restated, the Bylaws of the Company, as amended, the Registration Statement,
all corporate proceedings, records, agreements, instruments and documents, and
such statutory, constitutional and other material as I have deemed relevant or
necessary as the basis for the opinions hereinafter expressed. In connection
therewith, I have assumed the genuineness of all signatures on original or
certified copies and the conformity to original or certified copies of all
copies submitted to me as conformed or reproduction copies. As to various
questions of fact relevant to such opinions, I have relied upon certificates and
statements of public officials and officers or representatives of the Company
and others.
Based upon the foregoing, and subject to the limitations set forth herein, I
am of the opinion that the shares of the Stock have been, and when issued on
conversion thereof the shares of Common Stock so issued will have been, duly and
validly authorized and are or will be, as the case may be, legally issued, fully
paid and nonassessable under the general corporate laws of the State of
Maryland.
I wish to advise you that I am a member of the Maryland Bar and accordingly
limit the opinions expressed herein to matters of the laws of the State of
Maryland.
I consent to the filing of this opinion as an exhibit to the Registration
Statement and to the reference to my opinion in the Registration Statement and
Prospectus. Except as specifically provided above, this opinion may not be
quoted or relied upon by any other person without my prior consent.
Very truly yours,
/s/ Richard G. McCauley
Richard G. McCauley
<PAGE>
Exhibit 12.1
THE ROUSE COMPANY AND SUBSIDIARIES
Computation of Ratio of Earnings to Combined Fixed Charges and Preferred Stock
Dividends
(dollars in thousands)
<TABLE>
<CAPTION>
Year ended December 31,
-----------------------------------------------------
1994 1993 1992 1991 1990
-------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
Earnings (loss) before income taxes, extraordinary
loss and cumulative effect of change in accounting
principle.......................................... $ 13,336 $ 3,072 $(20,783) $ 5,245 $ 257
Fixed charges:
Interest costs..................................... 220,971 219,705 221,907 219,538 200,469
Capitalized interest............................... (7,388) (8,899) (15,098) (21,243) (29,947)
Amortization of debt issuance costs................ 2,063 2,801 3,571 3,173 2,833
Portion of rental expense representative of
interest factor(1)................................. 10,788 15,988 14,739 15,265 12,465
Support for debt service costs provided to
affiliates accounted for under the equity method... 0 31 389 1,106 2,081
Adjustments to earnings (loss):
Minority interest in earnings of majority-owned
subsidiaries having fixed charges.................. 2,142 1,909 1,747 2,118 1,698
Undistributed earnings of less than 50%-owned
subsidiaries....................................... (170) (68) (84) (540) (222)
Previously capitalized interest amortized into earnings:
Depreciation of operating properties(2)............ 3,670 3,605 3,474 3,145 2,683
Cost of land sales(3).............................. 1,580 1,627 1,295 928 956
-------- -------- -------- -------- --------
Earnings available for fixed charges and
Preferred stock dividends $246,992 $239,770 $211,157 $228,735 $193,273
======== ======== ======== ======== ========
Fixed charges:
Interest costs..................................... 220,971 219,705 221,907 219,538 200,469
Amortization of debt expense....................... 2,063 2,801 3,571 3,173 2,833
Portion of rental expense representative of
interest factor(1)................................. 10,788 15,988 14,739 15,265 12,465
Support for debt service costs provided to
affiliates accounted for under the equity
method............................................. 0 31 389 1,106 2,081
Preferred stock dividend requirements(4) 21,802 18,968 -- -- 3,788
-------- -------- -------- -------- --------
Total fixed charges and Preferred stock
dividends $255,524 $257,493 $240,606 $239,082 $221,636
======== ======== ======== ======== ========
Ratio of earnings to fixed charges(5).................. -- -- -- -- --
======== ======== ======== ======== ========
</TABLE>
- --------------------
(1) Includes (a) 80% of minimum rentals, the portion of such rentals considered
to be a reasonable estimate of the interest factor and (b) 100% of
contingent rentals of $6,232,000, $10,006,000, $8,106,000, $8,458,000 and
$5,588,000 for the years ended December 31, 1994, 1993, 1992, 1991 and
1990, respectively.
(2) Represents an estimate of depreciation of capitalized interest costs based
on the Company's established depreciation policy and an analysis of
interest costs capitalized since 1971.
(3) Represents 10% of cost of land sales, the portion of such cost considered
to be a reasonable estimate of the interest factor.
(4) Represents estimated pretax earnings required to pay dividends on Preferred
stock. Amounts in 1990 and 1989 were for dividends on Redeemable Preferred
stock, which was acquired by a subsidiary and retired for financial
reporting purposes in 1990. Amounts in 1994 and 1993 are for Convertible
Preferred stock, which the Company issued in 1993. All amounts are
calculated based on actual Preferred stock dividends and an estimated
effective tax rate of 40%.
(5) Total fixed charges and Preferred stock dividends exceeded the Company's
earnings available for fixed charges and Preferred stock dividends by
$8,632,000, $17,723,000, $29,449,000, $10,347,000 and $28,363,000 for the
years ended December 31, 1994, 1993, 1992, 1991 and 1990, respectively.
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
---------------------------------------------------
The Board of Directors
The Rouse Company:
We consent to the use of our report incorporated herein by reference and to the
reference to our firm under the heading "Experts" in the prospectus.
/s/ KPMG PEAT MARWICK LLP
-------------------------------------------
KPMG PEAT MARWICK LLP
Baltimore, Maryland
April 5, 1995
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT REAL ESTATE CONSULTANTS
----------------------------------------------
The Board of Directors of The Rouse Company:
We consent to the incorporation by reference in Amendment No. 2 to
the Registration Statement on Form S-3 (Registration No. 33-57707) of The Rouse
Company (the "Company") of our report, dated February 21, 1995, on our
concurrence with the Company's estimates of the market value of its equity and
other interests in certain real property owned and/or managed by the Company and
its subsidiaries as of December 31, 1994 and 1993, which report appears on page
19 of the 1994 Annual Report to Shareholders that is incorporated by reference
in the Annual Report on Form 10-K of the Company for the year ended December 31,
1994, and to the reference to our firm under the heading "Experts" in the
Prospectus that is a part of such Registration Statement.
/s/ DEBORAH A. JACKSON
----------------------------------------
LANDAUER ASSOCIATES, INC.
New York, New York
April 5, 1995
